Successors and Assigns; Participations and Assignments Sample Clauses: 3k Samples

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23. (b) Any Lender other than any Conduit Lender may, without the consent of any other party to this Agreement, in accordance with applicable law, at any time sell to one or more Eligible Assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 2 contracts

Sources: Credit Agreement (Domtar CORP), Credit Agreement (Domtar CORP)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may~~, without the consent of any other party to this Agreement~~, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating ------------ interests in any Loan or L/C Obligation owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing -------- such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 11.7(a) as --------------- fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.11 ------------ ---- ---- with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; provided that, in the case of Section ~~2.18~~-------- ------- 4.10, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ ---- and provided, further, that no Participant shall be entitled to receive any -------- ------- greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in accordance with applicable law, at any time and from time to time assign to any Person (an "Assignee") all or ~~a portion~~ any part of its ~~Loans~~ -------- rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ------- A, executed by such ~~Assignee,~~ Assignee and such ~~Assignor and any other Person whose consent is required pursuant to this paragraph,~~ assigning Lender and delivered to the - Administrative Agent for its acceptance and recording in the ~~relevant~~ Register (~~it being understood~~ with a copy to the Borrower) and ~~agreed that such Assignee, if it shall not be a Lender, shall deliver~~ upon payment to the Administrative Agent ~~an administrative questionnaire~~ of a processing fee in ~~which~~ the ~~Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about~~ amount of $3,500 by the Parent Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable ~~laws, including Federal and state securities laws)~~Lender and/or Assignee; provided that, ~~notwithstanding anything to the contrary in this Agreement or any of the Loan Documents,~~ (i) no ~~Lender~~ such assignment shall be ~~entitled~~in an amount less than $5,000,000 -------- or a whole multiple of $100,000 in excess thereof or, if less than $5,000,000, the entire amount of such Lender's applicable Commitment; and (ii) no such assignment shall be made without the prior consent of the ~~Parent Borrower, to make an assignment under this Section 10.6(c~~Administrative Agent and the Borrower (which consent shall not be unreasonably withheld or delayed) if unless such assignment ~~would increase the cost under this Agreement~~ is to ~~any Borrower~~another Lender or an Affiliate of a Lender, ~~including without limitation under Section 2.17 or 2.18, as of the date of~~ in which event no such ~~assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~consent shall be required. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this ~~Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this~~ Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in ---------- respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrower (through the Administrative Agent), and the Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit O (an "Alternative Note"). Alternative --------- ---------------- Notes may not be exchanged for promissory notes that are not Alternative Notes. (e) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and that holds Alternative Note(s) (an "Alternative ----------- Noteholder") (or, if such Alternative Noteholder is not the beneficial owner ---------- thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8 (Certificate of Foreign Status of the U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities), together with an annual certificate stating that (i) such Alternative Noteholder or beneficial owner, as the case may be, is not a "bank" within the meaning of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case may be, shall promptly notify the Borrower if at any time such Alternative Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to provide such certification to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purposes). 100 (f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f). --------------- (g) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in Section ~~10.2~~ 11.2 ------------ a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders -------- (including Alternative Noteholders) and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (fh) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee and ~~any other Person whose consent is required by Section 10.6(c)~~the Borrower, if applicable, together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 from the applicable Lender and/or Assignee, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the ~~effective date determined pursuant thereto~~Lenders and the Borrower. (gi) Subject to Section 11.16, the Borrower authorizes each Lender to ------------- disclose to any Participant or Assignee (each, a "Transferee") and any ---------- prospective Transferee, subject to the Transferee agreeing to be bound by the provisions of Section 11.16, any and all financial information in such Lender's ------------- possession concerning the Borrower and the Subsidiaries which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Subsidiaries prior to becoming a party to this Agreement. (j) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ 101 including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 2 contracts

Sources: Credit Agreement (Radio One Inc), Credit Agreement (Radio One Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Canadian Borrower, the US Borrower, the Lenders, the ~~Administrative Agent~~Arrangers, the Agents, all future holders of the Loans and their respective successors and assigns, except that no neither Borrower may assign or transfer any of ~~its~~ their respective rights or obligations under this Agreement without the prior written consent of the Arrangers, the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of either Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation, 1. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 10.7(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19, 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.21, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name If and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that ~~such disclosure is necessary~~ a Non-U.S. Lender sells a participating interest to ~~establish that such commitment~~a Participant which, ~~loan~~pursuant to Section 9.12(c), ~~letter~~ seeks to obtain the benefits of ~~credit or other obligation is in registered form under~~ Section ~~5f.103-1(c~~2.21, then (a) ~~of the United States Treasury Regulations or,~~ in the case of a Loan that is not a Canadian Loan, such Lender shall promptly provide the US Borrower and the Administrative Agent with documentation reflecting the portion of its Loan, Commitment and/or any ~~Canadian Borrower~~other interest of such Lender hereunder and under the other Loan Documents sold pursuant to such participating interest on a properly completed and duly executed Internal Revenue Service Form W-8IMY (or any subsequent versions thereof or successors thereto) with any required attachments, ~~to establish that~~ if any, and the portion of its Loan, Commitment and/or any other interest of such ~~Participant dealt at arm’s length with such Canadian Borrower for purposes of~~ Lender hereunder and under the ~~Income Tax Act~~ other Loan Documents or (~~Canada~~b) ~~or,~~ in the case of ~~any Spanish Borrower~~a Canadian Loan, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall ~~treat each Person whose name is recorded~~ promptly provide the Canadian Borrower and the Canadian Agent with documentation reflecting the portion of its Loan, Commitment and/or any other interest of such Lender hereunder and under the other Loan Documents sold pursuant to such participating interest in ~~the Participant Register~~ such form as the ~~owner of such participation for all purposes of this Agreement notwithstanding any notice~~ Canadian Agent shall determine from time to ~~the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~time. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent (and the Canadian Agent, ~~all~~ in the case of Canadian Loans), at any time and from time to time assign to any Lender or ~~a portion~~ any affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the US Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the relevant Issuing Lender(s) and the relevant Swing Line Lender(s) which, in each case, shall not be unreasonably withheld or delayed); provided (x) that no such consent need be obtained by the Administrative Agent or its ~~Loans~~ affiliates and ~~Revolving Commitments hereunder~~ (y) the consent of the US Borrower need not be obtained with respect to any assignment of Term Loans, to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ of all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit E (an “Assignment and Assumption”), executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of either Borrower, the Administrative Agent, the Canadian Agent, the relevant Issuing Lender or the relevant Swing Line Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the relevant Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant~~ Register and with respect to the Canadian Term Loan Facility and any Canadian Loans under the Revolving Credit Facilities, the Canadian Agent; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $1,000,000 (with respect to Term Loans and $2,000,000 with respect to the Revolving Credit Facilities (other than, in each case, in the case of an assignment of all of a Lender’s interests under this Agreement)), unless otherwise agreed ~~that~~ by the Borrowers and the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Section 2.20, 2.21, 2.22, 9.12 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this Section, no consent of the ~~foregoing,~~ Borrowers shall be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all~~ Default shall have occurred and be continuing. For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in ~~the first sentence of~~ this ~~Section 10.6(c)~~paragraph, multiple assignments by two or more Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of ~~the Borrowers~~each Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~each Borrower, ~~the Administrative~~ each Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption~~, and~~ ; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the applicable Borrower marked “canceled”. The Register shall be available for inspection by any Borrower or any Lender (with respect to any entry relating to such ~~Assignee~~Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption ~~in conformity with Section 10.6(c),~~ executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the relevant ~~Register on~~ Borrower. On or prior to such effective date, the ~~effective date determined~~ relevant Borrower, at their own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For the avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Notes, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent, or the Canadian Agent with respect to Canadian Term Loans and any Canadian Loans under the Revolving Credit Facilities, and the US Borrower or the Canadian Borrower, as applicable, the option to provide to the US Borrower, or the Canadian Borrower, as applicable, all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the US Borrower, or the Canadian Borrower, as applicable, pursuant to this Agreement; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each ~~Borrower~~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 Lender). In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees (which agreement shall survive the ~~Administrative Agent each hereby confirms~~ termination of this Agreement) that, prior to the date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of ~~the latest maturing~~ all outstanding commercial paper ~~note issued by~~ or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such ~~Conduit Lender; provided~~SPC any bankruptcy, ~~however~~reorganization, ~~that each Lender designating~~ arrangement, insolvency or liquidation proceedings under the laws of the United States of America or any ~~Conduit Lender hereby agrees~~ state thereof or Canada or any province thereof. In addition, notwithstanding anything to ~~indemnify~~the contrary in this Section 10.6(g), ~~save~~ any SPC may (A) with notice to, but without the prior written consent of, any Borrower or the applicable Agents and ~~hold harmless each other party hereto for~~ without paying any ~~loss~~processing fee therefor, ~~cost, damage~~ assign all or ~~expense arising out~~ a portion of its ~~inability~~ interests in any Loans to ~~institute~~ the Granting Lender, or with the prior written consent of any Borrower or the applicable Agents (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a ~~proceeding against~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such ~~Conduit Lender during~~ SPC; provided that non-public information with respect to any Borrower may be disclosed only with such ~~period~~ Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~forbearance~~any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (Waste Services, Inc.), Credit Agreement (Waste Services, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except ~~for any assignment by~~ in a ~~Canadian Borrower, a Spanish Borrower or a Swedish Borrower as~~ transaction permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.237.4). (b) Any ~~Lender other than any Conduit~~ Lender may, without the consent of any ~~other party to this Agreement~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities other than an Ineligible Institution (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement,~~ Agreement and the ~~Borrowers~~ other Loan Documents, the Participant will have no proprietary interest in the benefit of this Agreement or in any monies received by the Lender under or in relation to this Agreement (including in the bankruptcy or similar event of the Lender) and the Borrowers, the Issuing Lenders, the other Lenders and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of the applicable participating Lender and would reduce the principal ~~of,~~ of or interest on, the Loans or any fees payable hereunder, or postpone the date of any scheduled amortization payment or the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower agrees~~ Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that ~~if amounts outstanding under~~ such Lender shall retain the sole right to enforce this Agreement and the ~~Loans are due or unpaid~~other Loan Documents and, ~~or shall have been declared or shall have become due and payable upon~~ other than as set forth in the ~~occurrence of an Event of Default, each Participant shall~~preceding sentence, to ~~the maximum extent permitted by applicable law~~approve any amendment, ~~be deemed to have the right~~ modification or waiver of ~~setoff in respect~~ any provision of ~~its participating interest in amounts owing under~~ this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the or any other ~~hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant~~Loan Document. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.20, ~~2.18~~ 2.21 and ~~2.19~~ 2.22 (~~and~~ subject to the requirements and limitations set forth therein~~, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)~~) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a ~~Lender;~~ Lender; provided ~~that, in the case of Section 2.18,~~ that such Participant ~~shall have complied with~~ (i) agrees to be subject to the ~~requirements~~ provisions of ~~said Section~~ Sections 2.23 and 2.24 and 9.6(d) as if it were ~~a Lender~~ an assignee under paragraph (c) of this Section and ~~provided, further, that no Participant~~ (ii) shall not be entitled to receive any greater amount pursuant to ~~any such Section~~ Sections 2.20, 2.21 or 2.22 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a ~~participation shall~~participation, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower~~Borrowers, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant ~~Register”);~~ Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~commitments~~Commitments, ~~loans~~Loans, ~~letters~~ Letters of ~~credit~~ Credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such ~~commitment~~Commitment, ~~loan~~Loan, ~~letter~~ Letter of ~~credit~~ Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the Proposed United States Treasury Regulations (or, in ~~the case of~~ each case, any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Taxamended or successor version). The entries in the Participant Register shall be conclusive absent manifest error, and such ~~Lender~~ Lender, each Loan Party and the Administrative Agent shall treat each ~~Person~~ person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 2 contracts

Sources: Credit Agreement (Neogen Corp), Credit Agreement (Garden SpinCo Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Borrower, the Lenders, ~~the~~ Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities other than to a Competitor (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and ~~the Borrowers~~ Borrower and ~~the~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.17 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Eligible Assignee all or ~~a portion~~ any part of its ~~Loans~~ rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Eligible Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to ~~the~~ Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ unless otherwise agreed by Borrower and Administrative Agent, no such assignment to ~~the contrary in this Agreement~~ an Eligible Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this Agreement. For purposes of the ~~Loan Documents~~proviso contained in the preceding sentence, ~~no Lender~~ the amount described therein shall be ~~entitled~~aggregated in respect of each Lender and its Lender Affiliates, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureany. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of Borrower shall not be required for any ~~Borrower or the Administrative Agent any or all~~ assignment that occurs when an Event of ~~the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) ~~The~~ Administrative Agent shall, on behalf of ~~the Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~Borrower, ~~the~~ each other Loan Party, Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated ~~Assignee, if requested by such~~ Eligible Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Eligible Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to ~~the~~ Administrative Agent of a registration and processing fee of ~~US$~~$3,500, ~~the~~ Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) ~~Each~~ Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 2 contracts

Sources: Credit Agreement (Standard Pacific Corp /De/), Credit Agreement (Standard Pacific Corp /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Sellers, the ~~Lenders~~Servicer, the Purchasers, the Administrative Agent, ~~all future holders of the Loans~~ and their respective successors and permitted assigns, except that ~~no Borrower~~ neither the Sellers nor the Servicer (in its capacity as such) may assign or transfer any of ~~its~~ their rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Purchaser. (b) Any ~~Lender other than any Conduit Lender~~ Purchaser may, without the consent of ~~any other party to this Agreement~~the Servicer or the Sellers, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any ~~Loan owing~~ Purchased Assets co-owned by such Purchaser, the Purchaser’s commitment to ~~such Lender, any Revolving Commitment~~ purchase Receivables up to the Investment Limits of such ~~Lender~~ Purchaser or any ~~other~~ related interest of such ~~Lender hereunder~~Purchaser hereunder and under the other Transaction Documents. In the event of any such sale by ~~a Lender~~ any Purchaser of a participating interest to a Participant, except as otherwise provided herein, such ~~Lender~~Purchaser’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such ~~Lender~~ Purchaser shall remain solely responsible for the performance thereof, such ~~Lender~~ Purchaser shall remain the holder of any such ~~Loan~~ Purchased Assets for all purposes under this ~~Agreement~~Agreement and the other Transaction Documents, and the ~~Borrowers~~ Servicer, the Sellers, the Administrative Agent and the ~~Administrative~~ Collection Agent shall continue to deal solely and directly with such ~~Lender~~ Purchaser in connection with such ~~Lender~~Purchaser’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the ~~Loans are due or unpaid, or shall have been declared or shall have become due~~ other Transaction Documents. The Servicer and ~~payable upon the occurrence of an Event of Default,~~ each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also Seller agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.7, ~~2.18~~ 2.8 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.9 with respect to its participation in the ~~Revolving Commitments~~ Purchaser’s commitment to purchase Receivables up to its Investment Limits and the ~~Loans~~ Purchased Assets outstanding from time to time as if it was a ~~Lender~~Purchaser; provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further,~~ that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor ~~Lender~~ Purchaser would have been entitled to receive in respect of the amount of the participation transferred by such transferor ~~Lender~~ Purchaser to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any ~~Lender other than any Conduit Lender~~ Purchaser (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Purchaser or any Purchaser Affiliate or, with the prior written consent of the Servicer (which, in each case, may not be unreasonably withheld but may be withheld if the Servicer determines in its sole judgment that such assignment may have an adverse impact on the economics or administration of the transactions contemplated hereunder, impacts on other banking and financial relationships or would permit a ~~portion of its Loans~~ competitor or potential competitor to become involved in such transactions or privy to confidential or commercially sensitive information), and ~~Revolving Commitments hereunder~~ the Administrative Agent, to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the ~~consent~~other Transaction Documents and any Purchased Assets then owned by it, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and ~~Assumption,~~ Acceptance executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register. Unless otherwise agreed by the Servicer and the Administrative Agent, no such assignment to an Assignee (~~it being understood~~ other than any Purchaser or any Purchaser Affiliate) shall be in an amount of less than $5,000,000, in each case except in the case of an assignment of all of a Purchaser’s Investment Limits under this Agreement. For purposes of the preceding sentence, the amount described therein shall be aggregated in respect of each Purchaser and ~~agreed that such Assignee~~its Purchaser Affiliates, 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureany. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a ~~Lender~~ Purchaser hereunder with ~~a Revolving Commitment~~ the Purchaser’s Investment Limits and/or ~~Loans~~ share of the Investments as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Section 2.7, 2.8, 2.9 and 9.5 for the period of time it was a Purchaser hereunder); provided that no Assignee shall be entitled to receive any greater amount pursuant to Section 2.7, 2.8 or 2.9 than the Assignor would have been entitled to receive in respect of the portion of the rights and obligations assigned by such Assignor to such Assignee had no such assignment occurred. Notwithstanding ~~the foregoing~~any provision of this Section 9.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Servicer shall not be required for any ~~Borrower or~~ assignment that occurs when a Termination Event shall have occurred and be continuing (although in such event, the ~~Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth~~ proviso in the ~~first~~ immediately preceding sentence ~~of this Section 10.6(c~~shall continue in full force and effect). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Servicer, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the ~~Lenders~~ Purchasers and the ~~Revolving Commitment~~ Purchaser’s Investment Limit of, and the ~~principal~~ amount ~~(and stated interest)~~ of the ~~Loans owing to,~~ Purchased Assets co-owned by each ~~Lender~~ Purchaser from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Servicer, each Seller, the Administrative Agent, the Collection Agent and the ~~Lenders~~ Purchasers shall treat each Person whose name is recorded in ~~each~~ the Register as the co-owner of the ~~Loans and any Notes evidencing the Loans~~ Purchased Assets recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan, whether or not evidenced by a Note,~~ Purchased Assets shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by any Purchaser, the ~~relevant Register only~~ Servicer or any Seller at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000 (which shall be the sole responsibility of the Assignor or Assignee, as the case may be), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a ~~Lender~~ Purchaser to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 2 contracts

Sources: Revolving Trade Receivables Purchase Agreement (Celestica Inc), Revolving Trade Receivables Purchase Agreement (Celestica Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Gannett, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~no Borrower~~ Gannett may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~Gannett or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and ~~the Borrowers~~ Gannett and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by ~~any Borrower~~ Gannett therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower~~ Gannett agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 9.7(a) as fully as if it were a Lender hereunder. ~~Each Borrower~~ Gannett also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.14 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.15 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Lender Affiliate or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred~~ Gannett and ~~is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from~~ the Administrative Agent ~~for such consent,~~ (~~b) the Administrative Agent, and (c) each Issuing Lender~~which, in each ~~case~~ case, shall not be unreasonably withheld, delayed or conditioned), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ unless otherwise agreed by Gannett and the Administrative Agent, no such assignment to ~~the contrary in this Agreement~~ an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $10,000,000, in each case except in the case of an assignment of all of a Lender's interests under this Agreement. For purposes of the ~~Loan Documents~~proviso contained in the preceding sentence, ~~no Lender~~ the amount described therein shall be ~~entitled~~aggregated in respect of each Lender and its Lender Affiliates, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureany. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 9.6, the consent of Gannett shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any Borrower~~ Gannett or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~9.6(c). (d) The Administrative Agent shall, on behalf of ~~the Borrowers~~Gannett, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~Gannett, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any ~~Notes~~ promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a ~~Note~~promissory note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant Register (and each Note shall expressly so provide)~~Register. Any assignment or transfer of all or part of a Loan evidenced by a ~~Note~~ promissory note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the ~~Note~~ promissory note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new ~~Notes may~~ promissory notes shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is a Lender Affiliate of the relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender to ~~any~~ secure obligations to a Federal Reserve Bank in accordance with applicable law; provided that ~~the foreclosure on~~ no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) ~~Each Borrower~~Gannett, upon receipt of written notice from the relevant Lender, agrees to issue ~~Notes~~ a promissory note to any Lender requiring ~~Notes~~ such a note to facilitate transactions of the type described in paragraph (gf) above. (ih) Each ~~Borrower~~of Gannett, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit ~~Lender during such period of forbearance~~Lender.

Appears in 2 contracts

Sources: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/), Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Loan Parties, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may~~, without the consent of any other party to this Agreement~~, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 11.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~3.9, ~~2.18~~ 3.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 3.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~3.10, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time upon notice to the Borrower and the Administrative Agent assign to any Lender, any affiliate of any Lender or ~~a portion of its Loans and Revolving Commitments hereunder~~ to an Eligible ~~Assignee~~ Transferee (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate of a Lender) shall be in an aggregate principal amount of less than $2,000,000 (or an integral multiple of $1,000,000 in excess thereof) (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and ~~agreed that such Assignee~~the Administrative Agent. For purposes of the proviso contained in the preceding sentence, the amount described therein shall be aggregated in respect of each Lender and each Lender’s Affiliates, if ~~it shall~~ any. Any such assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or~~ Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~11.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 11.6 concerning assignments of Loans and Notes relate only to the absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank ~~in accordance with applicable law; provided~~ (it being understood that ~~the~~ any foreclosure on of any such ~~pledged Loan~~ security interest and any assignment of rights (including voting rights) in connection therewith shall be subject to the ~~provisions regarding restrictions on assignments contained in~~ requirements of this ~~Section 10.6~~Section). (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes (in a form to be reasonably agreed with the Borrower) to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 2 contracts

Sources: Credit and Guarantee Agreement (Northwest Airlines Corp), Credit and Guarantee Agreement (Northwest Airlines Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Gannett, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~no Borrower~~ Gannett may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~Gannett or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and ~~the Borrowers~~ Gannett and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by ~~any Borrower~~ Gannett therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower~~ Gannett agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 9.7(a) as fully as if it were a Lender hereunder. ~~Each Borrower~~ Gannett also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.16 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or, with the consent of Gannett and the Administrative Agent (which, in each case, shall not be unreasonably withheld, delayed or conditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a ~~portion~~ Lender should notify Gannett as promptly as possible of any request for assignment and Gannett, in turn, should promptly consider such request for assignment; and (ii) Gannett’s consent shall not be considered to be unreasonably withheld, delayed or conditioned if Gannett withholds, delays or conditions its ~~Loans and Revolving Commitments hereunder~~ consent because, among other factors, it is concerned about a potential Assignee’s capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ unless otherwise agreed by Gannett and the Administrative Agent, no such assignment to ~~the contrary in this Agreement~~ an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $10,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this Agreement. For purposes of the ~~Loan Documents~~proviso contained in the preceding sentence, ~~no Lender~~ the amount described therein shall be ~~entitled~~aggregated in respect of each Lender and its Lender Affiliates, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureany. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 9.6, the consent of Gannett shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any Borrower~~ Gannett or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~9.6(c). (d) The Administrative Agent shall, on behalf of ~~the Borrowers~~Gannett, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~Gannett, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any ~~Notes~~ promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a ~~Note~~promissory note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant Register (and each Note shall expressly so provide)~~Register. Any assignment or transfer of all or part of a Loan evidenced by a ~~Note~~ promissory note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the ~~Note~~ promissory note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new ~~Notes may~~ promissory notes shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is a Lender Affiliate of the relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender to ~~any~~ secure obligations to a Federal Reserve Bank in accordance with applicable law; provided that ~~the foreclosure on~~ no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) ~~Each Borrower~~Gannett, upon receipt of written notice from the relevant Lender, agrees to issue ~~Notes~~ a promissory note to any Lender requiring ~~Notes~~ such a note to facilitate transactions of the type described in paragraph (gf) above. (ih) Each ~~Borrower~~of Gannett, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit ~~Lender during such period of forbearance~~Lender.

Appears in 2 contracts

Sources: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/), Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the ~~Administrative Agent~~Agents, the Issuing Lenders, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents, each Issuing Lender and each Lender (~~except for any assignment by~~ provided that a ~~Canadian Borrower, a Spanish~~ Borrower may merge or ~~a Swedish~~ consolidate with another Borrower ~~as permitted by~~ in accordance with Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.237.04). (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of of, or notice to, any ~~other party to this Agreement~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than the Company or any of its controlled Affiliates) (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the Borrowers and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to enforce this agreement or to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of~~consent of all Lenders, all affected Lenders or ~~interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case~~ all affected Lenders under a particular Facility pursuant to ~~the extent subject to such participation~~Section 10.01. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 10.07(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each ~~Participant~~ participant and the principal amounts (and ~~stated interest~~interest thereon) of each ~~Participant~~participant’s interest in the Loans or other ~~obligations~~ Obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and ~~such Lender~~ the Borrowers, the Lenders and each Agent shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to one or ~~a portion of its Loans and Revolving Commitments hereunder to an~~ more Eligible ~~Assignee~~ Assignees (an “Assignee”) all or any part of its rights and obligations under this Agreement, with the ~~consent~~written consent of the Administrative Agent, the Company and, in the case of any assignment of Revolving Credit Commitments, each Issuing Lender (in each case which shall not be unreasonably withheld, delayed or conditioned and, in the case of the Company, shall be deemed given if such consent is not received or expressly declined in writing within five Business Days after request (in accordance with Section 10.02) therefor) pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D or any other form approved by the Administrative Agent (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the Company, the Administrative Agent or the Issuing Lender is required pursuant to the foregoing provisions, by the Company and such other Persons) and delivered to the Administrative Agent (A) via an electronic settlement system satisfactory to the Administrative Agent or (B) if previously agreed by the Administrative Agent, manually, for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any Affiliate or Related Fund thereof) shall be in an aggregate principal amount (determined as of the date of the relevant Assignment and Acceptance or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Company and the Administrative Agent (each such consent not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~)~~, or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that~~ . Any such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such Assignee, if it shall assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Section 2.17, 2.18 and 10.05 in respect of the period prior to such effective date). Notwithstanding any provision of this Section 10.06 to the ~~foregoing~~contrary, (I) the consent of the Company shall not be required for any ~~Conduit~~ assignment (x) in the case of any assignment of Term Loans, to another Lender, an Affiliate of a Lender ~~may assign~~ or a Related Fund of a Lender and, in the case of any assignment of Revolving Credit Commitments, to another Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or a Related Fund of a Revolving Credit Lender, (y) that occurs at any time when any Event of Default shall have occurred and be continuing or (z) during the primary syndication of the Loans and the Commitments to ~~its designating Lender hereunder without~~ Persons identified in writing to the Company as syndication targets prior to the Amendment Effective Date and (II) the consent of ~~any Borrower or~~ the Administrative Agent shall not be required for any assignment of Term Loans to another Lender, an Affiliate of a Lender or ~~all~~ a Related Fund of a Lender. For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in ~~the first sentence of~~ this ~~Section 10.6(c)~~paragraph, multiple assignments by two or more Related Funds shall be aggregated. (d) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Term Loan Commitment and Revolving Credit Commitment, and the outstanding balances of its Term Loans and Revolving Credit Loans, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above or otherwise agreed in writing between such assigning Lender and such assignee, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Company or any Subsidiary or the performance or observance by the Company or any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is an Eligible Assignee legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 4.01 or delivered pursuant to Section 6.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (e) The Administrative ~~Agent shall~~Agent, ~~on behalf~~ acting for this purpose as agent of the Borrowers, shall maintain at one of its ~~address referred to~~ addresses in ~~Section 10.2~~ the City of New York a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the Borrowers, ~~the Administrative~~ each Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon, ~~and thereupon~~ if requested by the Assignee, one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee.~~ the Administrative Agent to the Company marked “canceled”. The Register shall be available for inspection by the Borrowers or any Lender (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to any entry relating to such ~~assignment is delivered~~ Lender’s Loans) at any reasonable time and from time to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if anytime upon reasonable prior notice. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~10.06(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent), an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder) and any applicable tax forms, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant Register on~~ Register. Each Borrower, at its own expense, promptly upon request, shall execute and deliver to the ~~effective date determined~~ Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Amendment Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. (g) Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.06, disclose to the assignee or participant or proposed assignee or participant any information relating to the Company furnished to such Lender by or on behalf of the Company, including notification of the inclusion of, if applicable, material non-public information regarding the Company and/or its Subsidiaries; provided that, prior to any such disclosure of information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement, of which the Company is a third-party beneficiary, whereby such assignee or participant shall agree to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 10.15. (h) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Notes, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law; provided that ~~the foreclosure on~~ no such assignment shall release a Lender from any of its obligations hereunder or substitute any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any assignee for such Lender ~~requiring Notes to facilitate transactions of the type described in paragraph (g) above~~as a party hereto. (i) ~~Each Borrower~~Notwithstanding anything to the contrary contained herein, ~~each~~ any Lender ~~and~~ (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent ~~each hereby confirms~~ and the Company, the option to provide to the Borrowers all or any part of any Loan that ~~it will~~ such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not ~~institute against~~ to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued Loan by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.an

Appears in 2 contracts

Sources: Refinancing Amendment and Joinder Agreement (Verint Systems Inc), Credit Agreement (Verint Systems Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Company, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that ~~no Borrower~~ the Company may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its commercial banking business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such ~~Loan~~ Extension of Credit for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Company and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by ~~any Borrower~~ the Company therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower~~ The Company agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~subsection 12.7(a) as fully as if it were a Lender hereunder. ~~Each Borrower~~ 59 The Company also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 5.4, ~~2.18~~ 5.5 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 5.6 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; ~~provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its commercial banking business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of ~~(a)~~ the ~~Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred~~ Company and ~~is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from~~ the Administrative Agent ~~for such consent,~~ (~~b) the Administrative Agent, and (c) each Issuing Lender,~~ which in each case shall not be unreasonably withheld), to an additional bank or financial institution ("an Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption,~~ Acceptance executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Company and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed that such Assignee~~Register, 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, ~~notwithstanding anything~~ in the case of any such assignment to an additional bank or financial institution, the ~~contrary in this Agreement or any~~ aggregate amount of the ~~Loan Documents~~Commitment being assigned and, ~~no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment ~~would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ is of less than all of the ~~date of such assignment or if, as~~ rights and obligations of the ~~date~~ assigning Lender, the aggregate amount of the Commitment remaining with the assigning Lender are each not less than $5,000,000 (or such ~~assignment, such assignment would increase~~ lesser amount as may be agreed to by the ~~cost under this Agreement to any Borrower in~~ Company and the ~~foreseeable future~~Administrative Agent). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this subsection, the ~~foregoing,~~ consent of the Company shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 10(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Company, maintain at ~~its~~ the address of the Administrative Agent referred to in ~~Section 10.2~~ subsection 12.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Committed Rate Loans owing by the Company to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Company, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Committed Rate Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Committed Rate Loan or ~~not evidenced by a Note,~~ other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Company or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee.reasonable prior notice. 60 (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Company and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Company. (f) The Company authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the provisions of subsection 12.16, any and all financial information in such Lender's possession concerning the Company and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Company pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Company in connection with such Lender's credit evaluation of the Company and its Affiliates prior to becoming a party to this Agreement, provided, that the Lenders shall take such steps as reasonably necessary to ensure that confidential information will be treated in a confidential manner as required by subsection 12.16. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 10.6~~ subsection concerning assignments of Loans relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Harman International Industries Inc /De/)

Successors and Assigns; Participations and Assignments. ~~(a)~~ This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (ba) Any ~~Lender other than any Conduit~~ Lender may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 9.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.8 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.9 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.9, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (cb) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent,~~ consent of the Administrative Agent (which shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit A, executed by such Assignee, such Assignor and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed~~ Register; provided that ~~such Assignee, if it~~ the Administrative Agent's consent shall not be ~~a Lender~~required with respect to assignments made by any Lender that is an insurance company; and provided, ~~shall deliver to~~ further, that, unless otherwise agreed by the Administrative ~~Agent~~ Agent, no such assignment (other than to 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement that is a Lender or any ~~of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make~~ affiliate thereof or an assignment of all of an Assignor's interests under this ~~Section 10.6(c~~Agreement) if shall (i) be in an aggregate principal amount of less than $1,000,000 or (ii) result in such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAssignor's aggregate Loans then outstanding being less than $1,000,000. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (dc) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing ~~the Loans~~ such Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated ~~Assignee, if requested~~ Assignee and the old Notes shall be returned by ~~such Assignee~~the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (fd) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person under common management with such Lender, by the Borrower, the Administrative Agent and ~~any other Person whose consent is required by Section 10.6(c),~~ the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 by the Assignee (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Commitment and/or applicable Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment and/or Loans, as the case may be, upon request, a new Note to the order of the assigning Lender in an amount equal to the Commitment and/or applicable Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (ge) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Recoton Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the ~~Loans~~ Revolving Notes and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Revolving Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any ~~such Loan~~ Revolving Note for all purposes under this ~~Agreement~~Agreement and the other Credit Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Credit Document, or any consent to any departure by any ~~Borrower~~ Credit Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Revolving Loans or any fees payable hereunder~~, or postpone the date of the final maturity of the Loans~~, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.extent

Appears in 1 contract

Sources: Credit Agreement (Cogentrix Energy Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, the Collateral Agent, the Arranger, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23.of (b) Any ~~Lender other than any Conduit~~ Lender may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable ~~law~~Law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such ~~Lender, any Revolving Commitment of such~~ Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Holders (other than Permitted Holders described in clause (b) of the definition thereof) or any of their respective Affiliates or any of their respective associated investment funds, (ii) any Person that is a Defaulting Lender or a Disqualified Institution, (iii) the Borrower or any of its Subsidiaries (except as provided in Section 9.6(f)) or (iv) any natural person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural person). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~▇▇▇▇▇▇’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in each case~~ all Lenders pursuant to ~~the extent subject to such participation~~Section 9. 1. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ; provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 2.14 as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Sections ~~2.17~~2.15, ~~2.18 and 2.19~~ 2.16 or 2.17 (~~and~~ subject to the requirements and limitations ~~therein~~of such Sections, Section 2.18 and 2.19, including the requirements ~~under~~ of Section ~~2.18(f~~2.17(f) and (g) (it being ~~understood~~ agreed that ~~the documentation~~ any required ~~under Section 2.18(f)~~ forms shall be ~~delivered~~ provided solely to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further,~~ that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent that entitlement to ~~pay any~~ a greater amount ~~pursuant to Section 2.18 as~~ results from a ~~result of~~ Change in Law that occurs after such Participant acquires the applicable participation, unless such transfer ~~of a participation to a Participant than such Loan Party would have been required to pay absent such transfer~~was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation shall, acting solely for this purpose as ~~a non-fiduciary~~ an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal ~~amounts (~~and stated ~~interest)~~ interest amounts of each Participant’s interest in the Loans ~~or other obligations under the Loan Documents~~ held by it (the “Participant Register”)~~; provided that no~~ . 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 the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of ~~the~~ a Participant Register ~~to any Person~~ (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.such (c) Any ~~Lender other than any Conduit~~ Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~Law and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed) and, ~~all~~ so long as no Event of Default under Section 7.1(a)(1), (7) or ~~a portion of its Loans~~ (8) has occurred and ~~Revolving Commitments hereunder~~ is continuing, the Borrower (such consent not to be unreasonably withheld, conditioned or delayed and provided that the Borrower shall be deemed to have consented unless the Borrower shall have objected thereto within ten (10) Business Days after having received written notice thereof), at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, or to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption,~~ Acceptance executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose consent is required pursuant to this paragraph,~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that assignments made to any Lender, an affiliate of a Lender or a Related Fund will not be subject to the above described consents of the Administrative Agent or the Borrower; provided, further, that no assignment to an Assignee (~~it being understood and agreed that such Assignee~~other than any Lender or any affiliate thereof) of Commitments shall be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Term Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall ~~not be~~ retain any Commitment) shall have a ~~Lender, shall deliver to~~ Commitment of at least $1,000,000 unless otherwise agreed by the Administrative Agent ~~an administrative questionnaire in which~~ and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable lawsBorrower; provided, ~~including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents~~however, no Lender shall be ~~entitled, without the consent~~ permitted to assign all or any part of ~~the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost~~ its rights and obligations under this Agreement to (i) any ~~Borrower, including without limitation under Section 2.17 or 2.18, as~~ of the ~~date of such assignment or if, as~~ Permitted Holders (other than Permitted Holders described in clause (b) of the ~~date~~ definition thereof) or any of ~~such assignment~~their respective Affiliates or any of their respective associated investment funds, ~~such assignment would increase~~ (ii) any Person that is a Defaulting Lender or a Disqualified Institution, (iii) the ~~cost under this Agreement to~~ Borrower or any ~~Borrower~~ of its Subsidiaries (except as provided in clause (f) below) or (iv) any natural person (or a holding company, investment vehicle or trust for, or owned and operated by or for the ~~foreseeable future~~primary benefit of a natural person). Upon such execution, delivery, acceptance and recording in the ~~Register pursuant to Section 10.6(d)~~Register, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent ~~provided~~ of the interest assigned in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.16, 2.17 and 9.5 in respect of the period prior to such effective date). ~~Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all~~ For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in ~~the first sentence of~~ this ~~Section 10.6(c)~~paragraph, multiple assignments by two or more Related Funds shall be aggregated. (d) Any designation of a Disqualified Institution (x) shall not have retroactive effect to disqualify an entity in respect of any prior assignment, participation, executed trade with respect to the foregoing that has not yet settled or executed commitment advice letter, in respect of any Lender or potential Lender permitted hereunder at the time of such assignment, participation, executed trade or commitment advice letter and (y) shall not take effect until one (1) Business Day after written notice to the Administrative Agent. The Administrative Agent ~~shall, on behalf of~~ shall not be responsible for monitoring compliance with the ~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment~~ Disqualified Institution list and ~~Assumption delivered to it and a register (each, a “Register”)~~ shall have no liability for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and non-compliance by any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such AssigneeLender. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (provided, however, that (i) Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and (ii) no such fee shall be required to be paid in the case of an Assignee which is already a Lender or any affiliate, Related Fund or Control Investment Affiliate thereof), the Administrative Agent shall (iA) promptly accept such Assignment and (f) Any Lender may, so long as no Default or Event of Default has occurred and ~~Assumption~~ is continuing, at any time, assign all or a portion of its rights and obligations with respect to Term Loans under this Agreement to Borrower or any of its Subsidiaries through (x) Dutch auctions or other offers to purchase open to all Lenders on a pro rata basis consistent with procedures to be agreed between the Borrower and the Administrative Agent or (y) notwithstanding Sections 2.11 and 2.12 or any other provision in this Agreement, open market purchase on a non-pro rata basis; provided, further, that: (i) (a) the principal amount of such Term Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or transferred to the Borrower and not concurrently assigned to any bank, financial institution or other entity in accordance with this Section 9.6 shall be deemed automatically cancelled and extinguished on the date of such contribution, assignment or transfer, (b) the aggregate outstanding principal amount of Term Loans of the remaining Lenders shall reflect such cancellation and extinguishing of the Term Loans then held by the Borrower and (c) the Borrower shall promptly provide notice to the Administrative Agent of such contribution, assignment or transfer of such Term Loans, and the Administrative Agent, upon receipt of such notice, shall reflect the cancellation of the applicable Term Loans in the Register; (ii) ~~record~~ the ~~information contained therein~~ aggregate outstanding principal amount of the Term Loans of the applicable Class shall be deemed reduced by the full par value of the aggregate principal amount of the Term Loans purchased by, or contributed to (in each case, and subsequently cancelled pursuant to clause (i) above), the ~~relevant Register on~~ Borrower pursuant to Section 9.6(f) and the ~~effective date determined~~ principal repayment installments with respect to the Term Loans of such Class pursuant ~~thereto~~to Section 2.3 shall be reduced pro rata by the par value of the aggregate principal amount of Term Loans so purchased or contributed (and subsequently cancelled) to the extent such purchase or contribution was not financed with revolving indebtedness, with such reduction being applied solely to the Term Loans of the Lenders which sold such Term Loans. (g) [Reserved]. (h) [Reserved]. (i) [Reserved]. (j) [Reserved]. (k) [Reserved]. (l) [Reserved]. (m) The aggregate outstanding principal amount of the Term Loans of the applicable Class shall be deemed reduced by the full par value of the aggregate principal amount of the (n) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments of Loans and Loan Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Loan Notes, including any pledge or assignment by a Lender of any Loan or Loan Note to any Federal Reserve Bank in accordance with applicable ~~law~~Law. (o) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each ~~Borrower~~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 Lender). In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees (which agreement shall survive the ~~Administrative Agent each hereby confirms~~ termination of this Agreement) that, prior to the date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of ~~the latest maturing~~ all outstanding commercial paper ~~note issued~~ or other 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. Each party hereto also agrees that each SPC shall be entitled to the benefits of Sections 2.15, 2.16 or 2.17 (subject to the requirements and limitations of such Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) and (g) (it being agreed that any required forms shall be provided solely to the Granting Lender)) with respect to its granted interest in the Commitments and the Loans outstanding from time to time as if such SPC were a Lender; provided that no SPC shall be entitled to receive any greater amount pursuant to any such Section than the Granting Lender would have been entitled to receive in respect of the amount of the interest granted by such ~~Conduit Lender; provided~~Granting Lender to such SPC had no such grant occurred, ~~however~~except to the extent that entitlement to a greater amount results from a Change in Law that occurs after such interest was granted, ~~that each Lender designating~~ unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). In addition, notwithstanding anything to the contrary in this Section 9.6(m), any ~~Conduit Lender hereby agrees to indemnify~~SPC may (A) with notice to, ~~save~~ but without the prior written consent of, the Borrower and ~~hold harmless each other party hereto for any loss~~the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), ~~cost, damage~~ assign all or ~~expense arising out~~ a portion of its ~~inability~~ interests in any Loans to ~~institute~~ the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a ~~proceeding against~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such ~~Conduit Lender during such period of forbearance.~~SPC; provided that non-public information with respect to the Borrower or its Affiliates may

Appears in 1 contract

Sources: Credit Agreement (New Fortress Energy Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no (i) the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (cii) ~~below, respectively,~~ any attempted assignment or ~~pursuant to Section 2.23~~transfer by the Borrower without such consent shall be null and void. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~the Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ described in clause (w) of the ~~final maturity of the Loans~~proviso to Section 8.1(a) that affects such Participant, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 8.7 as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.9, ~~2.18~~ 2.10 and ~~2.19~~ 2.11 (and subject to the ~~requirements and~~ limitations ~~therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)~~thereof) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.10, such Participant shall have complied with the requirements of ~~said~~ Section 2.10) (including the requirements under Sections 2.10(e), 2.10(f) and 2.10(i) (it being understood that the documentation required under Sections 2.10(e), 2.10(f) and 2.10(i) shall be delivered to the participating Lender)) as if it ~~were~~ was a ~~Lender~~ Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to ~~any such Section~~ Sections 2.9, 2.10 or 2.11 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent such entitlement to ~~pay any~~ receive a greater ~~amount pursuant~~ payment results from a Change in Law made subsequent to ~~Section 2.18 as a result of~~ the ~~transfer of a participation to a~~ Closing Date that occurs after the Participant ~~than such Loan Party would have been required to pay absent such transfer~~acquired the applicable participation. Each Lender that sells a participation shall, acting ~~solely for this purpose~~ as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~commitments, loans, letters of credit~~ Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such ~~commitment, loan, letter of credit~~ Commitment or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the United States Proposed Treasury Regulations (or, in ~~the case of~~ each case, any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Taxamended or successor version). The entries in the Participant Register shall be ~~conclusive absent~~ conclusive, in the absence of manifest error, and such ~~Lender~~ Lender, each Loan Party and the Administrative Agent shall treat each ~~Person~~ person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Person (other than the Borrower or ~~a portion~~ any of its ~~Loans and Revolving Commitments hereunder to~~ Affiliates or an ~~Eligible Assignee~~ Ineligible Institution) (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided ~~that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without~~ that (i) the consent of the ~~Parent Borrower~~Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and in the case of the Borrower shall be deemed to ~~make~~ have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in each case except in the case of an assignment ~~under this Section 10.6(c) if such assignment would increase the cost~~ of all of a Lender’s interests under this Agreement or if otherwise consented to ~~any Borrower, including without limitation under Section 2.17 or 2.18, as~~ by the Borrower and the Administrative Agent. For purposes of the ~~date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower~~ proviso contained in the ~~foreseeable future~~preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any~~ the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~8.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 8.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan~~Loan or Commitment, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Commitment evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such ~~Loan,~~ Loan or Commitment accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Term Loan Agreement (Bunge Global SA)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, the Collateral Agent, the Arranger, all future holders of the Loans and their respective successors and assigns, except that no ~~Borrower~~ Loan Party may assign or transfer any of ~~its~~ their rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender, and no Lender (may assign or otherwise transfer any of its rights or obligations hereunder except ~~for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower~~ as ~~permitted by~~ described in this Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.239.6. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable ~~law~~Law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such ~~Lender, any Revolving Commitment of such~~ Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Holders (other than Permitted Holders described in clause (b) of the definition thereof) or any of their respective Affiliates or any of their respective associated investment funds, (ii) any Person that is a Defaulting Lender or a Disqualified Institution, (iii) the Borrower or any of its Subsidiaries or (iv) any natural person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural person). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~▇▇▇▇▇▇’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in each case~~ all Lenders pursuant to ~~the extent subject to such participation~~Section 9.1. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ; provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 2.14 as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Sections ~~2.17~~2.15, ~~2.18 and 2.19~~ 2.16 or 2.17 (~~and~~ subject to the requirements and limitations ~~therein~~of such Sections, Section 2.18 and 2.19, including the requirements ~~under~~ of Section ~~2.18(f~~2.17(f) and (g) (it being ~~understood~~ agreed that ~~the documentation~~ any required ~~under Section 2.18(f)~~ forms shall be ~~delivered~~ provided solely to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further,~~ that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent that entitlement to ~~pay any~~ a greater amount ~~pursuant to Section 2.18 as~~ results from a ~~result of~~ Change in Law that occurs after such Participant acquires the applicable participation, unless such transfer ~~of a participation to a Participant than such Loan Party would have been required to pay absent such transfer~~was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation shall, acting solely for this purpose as ~~a non-fiduciary~~ an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal ~~amounts (~~and stated ~~interest)~~ interest amounts of each Participant’s interest in the Loans ~~or other obligations under the Loan Documents~~ held by it (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be ~~conclusive~~ conclusive, absent manifest error, and such Lender shall treat each ~~Person~~ person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.is (c) Any ~~Lender other than any Conduit~~ Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~Law and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed) and, ~~all~~ so long as no Event of Default under Section 7.1(a)(1), (7) or ~~a portion of its Loans~~ (8) has occurred and ~~Revolving Commitments hereunder~~ is continuing, the Borrower (such consent not to be unreasonably withheld, conditioned or delayed and provided that the Borrower shall be deemed to have consented unless the Borrower shall have objected thereto within ten (10) Business Days after having received written notice thereof), at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, or to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption,~~ Acceptance executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose consent is required pursuant to this paragraph,~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that assignments made to any Lender, an affiliate of a Lender or a Related Fund will not be subject to the above described consents of the Administrative Agent or the Borrower; provided, further, that no assignment to an Assignee (~~it being understood and agreed that such Assignee~~other than any Lender or any affiliate thereof) of Commitments shall be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Term Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall ~~not be~~ retain any Commitment) shall have a ~~Lender, shall deliver to~~ Commitment of at least $1,000,000 unless otherwise agreed by the Administrative Agent ~~an administrative questionnaire in which~~ and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable lawsBorrower; provided, ~~including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents~~however, no Lender shall be ~~entitled, without the consent~~ permitted to assign all or any part of ~~the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost~~ its rights and obligations under this Agreement to (i) any ~~Borrower, including without limitation under Section 2.17 or 2.18, as~~ of the ~~date of such assignment or if, as~~ Permitted Holders (other than Permitted Holders described in clause (b) of the ~~date~~ definition thereof) or any of ~~such assignment~~their respective Affiliates or any of their respective associated investment funds, ~~such assignment would increase~~ (ii) any Person that is a Defaulting Lender or a Disqualified Institution, (iii) the ~~cost under this Agreement to~~ Borrower or any ~~Borrower in~~ of its Subsidiaries or (iv) any natural person (or a holding company, investment vehicle or trust for, or owned and operated by or for the ~~foreseeable future~~primary benefit of a natural person). Upon such execution, delivery, acceptance and recording in the ~~Register pursuant to Section 10.6(d)~~Register, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent ~~provided~~ of the interest assigned in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.16, 2.17 and 9.5 in respect of the period prior to such effective date). ~~Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all~~ For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in ~~the first sentence of~~ this ~~Section 10.6(c)~~paragraph, multiple assignments by two or more Related Funds shall be aggregated. (d) Any designation of a Disqualified Institution (x) shall not have retroactive effect to disqualify an entity in respect of any prior assignment, participation, executed trade with respect to the foregoing that has not yet settled or executed commitment advice letter, in respect of any Lender or potential Lender permitted hereunder at the time of such assignment, participation, executed trade or commitment advice letter and (y) shall not take effect until one (1) Business Day after written notice to the Administrative Agent. The Administrative Agent ~~shall, on behalf of~~ shall not be responsible for monitoring compliance with the ~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment~~ Disqualified Institution list and ~~Assumption delivered to it and a register (each, a “Register”)~~ shall have no liability for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and non-compliance by any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such AssigneeLender. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto.processing (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments of Loans and Loan Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Loan Notes, including any pledge or assignment by a Lender of any Loan or Loan Note to any Federal Reserve Bank in accordance with applicable ~~law~~Law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each ~~Borrower~~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 Lender). In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees (which agreement shall survive the ~~Administrative Agent each hereby confirms~~ termination of this Agreement) that, prior to the date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of ~~the latest maturing~~ all outstanding commercial paper ~~note issued~~ or other 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. Each party hereto also agrees that each SPC shall be entitled to the benefits of Sections 2.15, 2.16 or 2.17 (subject to the requirements and limitations of such Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) and (g) (it being agreed that any required forms shall be provided solely to the Granting Lender)) with respect to its granted interest in the Commitments and the Loans outstanding from time to time as if such SPC were a Lender; provided that no SPC shall be entitled to receive any greater amount pursuant to any such Section than the Granting Lender would have been entitled to receive in respect of the amount of the interest granted by such ~~Conduit Lender; provided~~Granting Lender to such SPC had no such grant occurred, ~~however~~except to the extent that entitlement to a greater amount results from a Change in Law that occurs after such interest was granted, ~~that each Lender designating~~ unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). In addition, notwithstanding anything to the contrary in this Section 9.6(g), any ~~Conduit Lender hereby agrees to indemnify~~SPC may (A) with notice to, ~~save~~ but without the prior written consent of, the Borrower and ~~hold harmless each other party hereto for any loss~~the Administrative Agent and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), ~~cost, damage~~ assign all or ~~expense arising out~~ a portion of its ~~inability~~ interests in any Loans to ~~institute such~~ the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) and with the payment of a ~~proceeding against such Conduit Lender during such period~~ processing fee in the amount of ~~forbearance.~~$3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion) to any financial institutions providing liquidity and/or credit support to or for the

Appears in 1 contract

Sources: Credit Agreement (New Fortress Energy Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~either Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, ~~any Revolving Commitment of such Lender~~ or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal ~~of,~~ of or interest on, the ~~Loans or any fees payable hereunder~~Loans, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant ~~shall,~~ shall to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 103(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under~~ Section ~~2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender))~~ 2.10 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided ~~that, in the case of Section 2.18,~~ that such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or to an additional bank, financial institution or other entity (an "Assignee") all or ~~a portion~~ any part of its ~~Loans~~ rights and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit N, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose consent is required pursuant to this paragraph,~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and~~ Register. Any such assignment shall be ratable as between the Facilities unless otherwise agreed ~~that such Assignee, if it shall not be a Lender, shall deliver to~~ by 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this ~~Agreement,~~ Agreement such ~~Assignor~~ assigning Lender shall cease to be a party hereto). ~~Notwithstanding~~ Unless requested by the ~~foregoing~~Assignee and/or the Assignor, new Notes shall not be required to be executed and delivered by the Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption delivered~~ Acceptance delivered, to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Loan recorded therein for all purposes of this Agreement. (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,000, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) record the information contained therein in the Register on the effective date determined pursuant thereto. (i) The Replacement Term Notes and the Tranche C Term Note shall in each case be issued by the Borrowers and payable to the order of a Lender (or, if required by such Lender, payable to such Lender or its registered assigns (an "Alternative Note")). Each Lender is hereby authorized to record, on the schedule annexed to and constituting a part of the relevant Note, information regarding the relevant Loans made by such Lender, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided that the failure to make any such recordation or any error in such recordation shall not affect the Borrower's obligations hereunder or under any Note. On or prior to the effective date of an Assignment and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the relevant Notes, new Notes to the order of the Assignee and, if applicable, the Assignor. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. 50 Any ~~assignment~~ Non-U.S. Lender that could become completely exempt from withholding of any ~~Loan~~tax, ~~whether~~ assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrower (through the Administrative Agent), and the Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for an Alternative Note. Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes. Each Non-U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.10(b). An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by ~~a Note, shall be effective only upon appropriate entries with respect thereto being made in~~ registration of such assignment or transfer of such Alternative Note and the ~~relevant~~ Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of ~~a Loan evidenced by a Note~~ such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the ~~Note~~ Alternative Note(s) evidencing such ~~Loan~~Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed ~~Assignment and Assumption~~by) the Alternative Noteholder thereof, and thereupon one or more new ~~Notes may~~ Alternative Note(s) in the same aggregate principal amount shall be issued to the designated ~~Assignee, if requested by such Assignee. (e) Except~~ Assignee(s). No assignment of an Alternative Note and the Obligations evidenced thereby shall be effective unless it has been recorded in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant theretoRegister. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Cpi Aerostructures Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such ~~Lender’s~~ Lenders' obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.17 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all or a portion~~ at any time and from time to time assign to any Lender, any affiliate of ~~its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Lender or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this ~~paragraph,~~ paragraph and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register, provided that no such assignment to an Assignee (~~it being understood and agreed that such Assignee~~other than any Lender, ~~if it~~ any affiliate of any Lender) shall ~~not~~ be in an aggregate principal amount of less than $10,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~shall deliver to~~ unless otherwise agreed by the Borrower and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Borrower shall not be required for any ~~Borrower or the Administrative Agent any or all~~ assignment that occurs when an Event of ~~the Loans it may have funded hereunder and~~ Default pursuant to ~~its designation agreement~~ Section 8(f) shall have occurred and ~~without regard~~ be continuing with respect to the ~~limitations set forth in the first sentence of this Section 10.6(c)~~Borrower. (d) The Administrative Agent shall, on behalf of o the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ revolving Credit Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any ~~Notes~~ notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a ~~Note~~note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each ~~Note~~ such note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a ~~Note~~ note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the ~~Note~~ note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon the old notes will be returned to the Borrower marked "canceled" and one or more new ~~Notes may~~ notes shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or ~~assignment by a Lender~~ assignments to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue ~~Notes~~ a note to any Lender requiring ~~Notes~~ a note to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Guess Inc Et Al/Ca/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender may, without~~ may in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. ~~In no event~~ No Lender shall permit any Participant ~~under any such participation~~ to have ~~any~~ (and no participant shall have) the right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided ~~that,~~ that in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant116 111 (a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 2.16, 2.17 and 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; , provided ~~that,~~ that in the case of ~~Section 2.18~~subsection 2.17, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ subsection and ~~provided, further,~~ provided further that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in the ordinary course of its business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, affiliate or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ Approved Fund thereof or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor (and, in the case of an Assignee that is not then a Lender, an affiliate thereof or an Approved Fund, by the Borrower and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register, provided, that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof or an Approved Fund) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (xA) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (yB) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this subsection 10.6, the ~~foregoing~~consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the Assignor, Notes shall not be required to be executed and delivered by the Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 8(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan or other obligation hereunder (whether or not evidenced by a Note, ) shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The 117 112 Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower of any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor~~Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender, an ~~Assignee~~ affiliate thereof or an Approved Fund, by the Borrower and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant ~~thereto~~thereto and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, upon request the Borrower, at its own expense, shall execute and deliver to the Administrative Agent (in exchange for any Revolving Credit Note, Term Note or Swingline Note of the assigning Lender) a new Revolving Credit Note, Term Note or Swingline Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment, Delayed Tranche A Term Loan Commitment or portion of the Tranche A Term Loans or Tranche B Term Loans or Incremental Term Loan, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or Delayed Tranche A Term Loan Commitment or portion of a Tranche A Term Loan, Tranche B Term Loan or Incremental Term Loan hereunder, a new Revolving Credit Note, Tranche A Term Note, Tranche B Term Note or Incremental Term Note, as the case may be, to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment or Delayed Tranche A Term Loan Commitment or Tranche A Term Loan, Tranche B Term Loan or Incremental Term Loan, as the case may be, retained by it hereunder. Such new Notes shall be in the form of the Note replaced thereby. (f) The Borrower agrees that, upon request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender (i) a promissory note of the Borrower evidencing the Revolving Credit Loans of such Lender, substantially in the form of Exhibit I-1 (each as amended, supplemented, replaced or otherwise modified from time to time, a "Revolving Credit Note"), and/or (ii) a promissory note of the Borrower evidencing the applicable Term Loan of such Lender, substantially in the form of Exhibit I-2 (each as amended, supplemented, replaced or otherwise modified from time to time, a "Term Note"), and/or (iii) a promissory note of the Borrower evidencing the Swingline Loans of the Swingline Lender, substantially in the form of Exhibit I-3) (as amended, supplemented, replaced or otherwise modified from time to time, the "Swingline Note"). (g) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information concerning the Loan Parties and their respective affiliates which has been delivered to such Lender by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document or which has been delivered to such Lender by or on behalf any Loan Party in connection with such Lender's credit evaluation of the Loan Parties and their respective affiliates, under the condition that such Transferee or prospective Transferee shall previously have agreed to be bound by the provisions of subsection 10.15. 118 113 (h) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section~~ subsection 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law; , provided that ~~the foreclosure on~~ no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such lender as a party hereunder. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (WTNH Broadcasting Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Parents, the Borrower, the Lenders, the Arranger, the Administrative Agent, all future holders of the Loans and Letters of Credit and their respective successors and assigns, except that no neither of the Parents nor the Borrower may assign or transfer any of ~~its~~ their respective rights or obligations under this Agreement without the prior written consent of the Arranger, the Administrative Agent and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (ba) Any ~~Lender other than any Conduit~~ Lender may, without the consent of the Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a ~~“Participant”~~"PARTICIPANT") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower, the Arranger and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ~~provided~~ PROVIDED that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; ~~provided~~ PROVIDED that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and ~~provided~~PROVIDED, ~~further~~FURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ . (b) Any Lender (an "ASSIGNOR") may, in accordance with applicable law and upon written notice to the ~~avoidance of doubt~~Administrative Agent, ~~no Loan Party shall be required~~ at any time and from time to ~~pay~~ time assign to any ~~greater amount pursuant to Section 2.18 as a result~~ Lender or any affiliate or Affiliated Fund of the ~~transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each~~ assigning Lender ~~that sells a participation shall~~or another Lender thereof or, ~~acting solely for this purpose as a non-fiduciary agent~~ with the consent of the ~~Borrower, maintain a register on which it enters the name and address of each Participant~~ Borrower and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations orAdministrative Agent and, in the case of any ~~Canadian Borrower~~assignment of Revolving Credit Commitments, ~~to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes~~ the written consent of the ~~Income Tax Act~~ Issuing Lender and the 102 Swing Line Lender (~~Canada) or~~which, in ~~the case of any Spanish Borrower~~each case, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed~~, of~~ ) (aPROVIDED that no such consent need be obtained (x) ~~the Parent Borrower, unless (i) the Assignee is~~ by a ~~Lender or a Lender Affiliate~~ L▇▇▇▇▇ Entity or (iiy) ~~an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (~~with respect to ~~a Borrower~~any assignment of funded Tranche B Term Loans), ~~has occurred~~ to an additional bank, financial institution or other entity (an "ASSIGNEE") all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit D (an "ASSIGNMENT AND ACCEPTANCE"), executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; PROVIDED that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate or Affiliated Fund of any Lender) shall be in an aggregate principal amount of less than $1.0 million (in the case of Tranche B Term Loans) and $5.0 million (with respect to all other Loans and Commitments) (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed ~~that~~ by the Borrower and the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (dc) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “Register”~~the "REGISTER") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee.~~ the Administrative Agent to the Borrower marked "canceled". The Register shall be available for inspection by the Borrower or any Lender (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to any entry relating to such ~~assignment is delivered~~ Lender's Loans) at any reasonable time and from time to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any.time upon reasonable prior notice. 103 (fd) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with any tax forms required by Section 2.20 and payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a L▇▇▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or an Affiliated Fund (and in the case of assignments on the same day from a Lender to more than one fund managed or advised by the same investment advisor (which funds are not then Lenders hereunder), only a single $3,500 registration and processing fee shall be payable for all such assignments by such Lender to such funds)), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Tranche B Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the Assignor or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (ge) For the avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrower or the Administrative Agent, assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund as security for such obligations or securities; provided that ~~the~~ any foreclosure ~~on any~~ or similar action by such ~~pledged Loan~~ trustee or representative shall be subject to the provisions ~~regarding restrictions on assignments contained in~~ of this Section ~~10.6~~10.6 concerning assignments. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Tsi Finance Inc)

Successors and Assigns; Participations and Assignments. (a) ~~This~~ Subject to subsection (c) of this Section 10.6, this Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (~~except for~~ and any purported such assignment or transfer by ~~a Canadian Borrower, a Spanish~~ the Borrower ~~or a Swedish Borrower as permitted by Section 7.3)~~ without the consent of each Lender shall be null and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23void). (b) Any Lender ~~other than any Conduit Lender~~ may~~, without the consent of any other party to this Agreement~~, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (~~each, a~~ “~~Participant~~Participants”) participating interests in any Loan owing to such Lender, ~~any Revolving~~ the Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents; provided that no Lender shall be permitted to sell participating interests in its Loans to any Tower Operator (or any Affiliate of a Tower Operator if an officer of such Lender involved with servicing of its Loans is aware of such affiliation) without the consent of the Borrower, except upon the occurrence and during the continuance of a Default or Event of Default. In the event of any such sale by a such Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers and the Administrative Agent~~ Borrower shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment to or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or the stated rate of interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the ~~Loans~~Loans or Reimbursement Obligations, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time, assign to one or ~~a portion~~ more Qualified Transferees, any Lender, any of its ~~Loans~~ Affiliates or an Approved Fund or, with the consent of the Administrative Agent, so long as no Default or Event of Default has occurred and ~~Revolving Commitments hereunder~~ is continuing, the Borrower (which shall not be unreasonably withheld), to ~~an Eligible Assignee~~ any additional bank, financial institution or other entity (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), all or ~~8(h) or 8(i) (with respect to a Borrower), has occurred~~ any part of its rights and ~~is continuing; provided that such consent shall be deemed given if~~ obligations under this Agreement and the ~~Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case~~ other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit P, appropriately completed (an “Assignment and Acceptance”), executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender, a Qualified Transferee, an Affiliate thereof or an Approved Fund, and ~~any other Person whose consent~~ except as otherwise set forth in this Section 10.6, by the Administrative Agent) executed by such Assignee, such assigning Lender (and, in the case of an Assignee that is ~~required pursuant to~~ not then a Lender, a Qualified Transferee or an Affiliate thereof and except as otherwise set forth in this ~~paragraph~~Section 10.6, by the Borrower (if no Default or Event of Default shall have occurred and be continuing) and the Administrative Agent), and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that (~~it being understood~~ i) no such assignment to an Assignee shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement) (such amount to be aggregated in respect of assignments by any Lender and ~~agreed that~~ the Affiliates or Approved Funds thereof), and (ii) each Assignee which is not a U.S. Person shall comply with the provisions of Section 3.10(f) (and such ~~Assignee, if it~~ Assignee shall not be ~~a Lender, shall deliver~~ entitled to the ~~Administrative Agent an administrative questionnaire in which the~~ benefits of Section 3.10 unless such 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 their related parties or their respective securities) will be made available and who may receive complies with such ~~information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws~~Section 3.10(f); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving Commitment and/or Loans~~ Loan as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor~~assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). ~~Notwithstanding~~ Subject to the ~~foregoing~~last sentence of this paragraph (c) and notwithstanding any other provision of this paragraph (c) and paragraph (d) of this Section, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrower, for any ~~Borrower or the Administrative Agent~~ assignment which occurs at any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with clause (b) of this Section 10.6. Notwithstanding the foregoing, no Lender shall be permitted to sell, assign or transfer all or any part of its rights and obligations under this Agreement and the other Loan Documents to any Tower Operator (or any Affiliate of a ~~Loan evidenced by a Note shall be registered on~~ Tower Operator if an officer of such Lender involved with servicing of its Loans is aware of such affiliation) without the ~~relevant Register only upon surrender for registration of assignment or transfer~~ consent of the ~~Note evidencing such Loan~~Borrower, ~~accompanied by~~ except upon the occurrence and during the continuance of a ~~duly executed Assignment and Assumption, and thereupon one~~ Default or ~~more new Notes may be issued to the designated Assignee, if requested by such Assignee~~Event of Default. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (fd) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee ~~and~~ (and, in the case of an Assignee that is not then a Lender, any ~~other Person whose consent is required~~ of its Affiliate, a Qualified Transferee or an affiliate or Approved Fund thereof, by ~~Section 10.6(c~~the Administrative Agent), together with payment by the Assignee or the assigning Lender to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance, and (ii) on the effective date determined pursuant thereto, record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the ~~effective date determined pursuant thereto~~Lenders and the Borrower. (ge) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in the Lender’s possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement. (f) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, (i) any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law, and (ii) any pledge or assignment by a Lender which is a fund to its trustee for the benefit of such trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party; provided that ~~the foreclosure on~~ no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged~~ pledgee or assignee for a Lender as a party hereto. (g) In connection with the Assignment of any Loan ~~shall be subject~~ to any Assignee, the ~~provisions regarding restrictions on assignments contained~~ Borrower hereby agrees not to assert any defense to, or any right of offset against, payment of such Loan as the result of any breach by the maker or holder of the related Commitment in ~~this Section 10.6~~connection with any future funding obligation under the Commitment and not to assert any claim against such Assignee in connection with the future funding obligation under the related Commitment. (h) Each ~~Borrower~~Lender which assigns all or a portion of its Loans pursuant to Section 10.6(c) hereby agrees at all times to indemnify any Transferee of such Loan with respect to any losses claims, demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind or nature, known or unknown, contingent or otherwise, whether incurred or imposed within or outside the judicial process, including, without limitation, reasonable attorneys’ fees and disbursements imposed upon ~~receipt of written notice~~ or incurred by or asserted against such Transferee arising from the ~~relevant Lender, agrees~~ failure of such Lender to ~~issue Notes to any Lender requiring Notes to facilitate transactions of~~ fulfill its future funding obligations under the ~~type described in paragraph (g) above~~related Commitment. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Sba Communications Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.20 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this ~~paragraph~~Section 10.6(c), and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Borrower shall not be required for any ~~Borrower or the Administrative Agent any or all~~ assignment that occurs when an Event of ~~the Loans it may have funded hereunder and~~ Default pursuant to ~~its designation agreement~~ Section 8(f) shall have occurred and ~~without regard~~ be continuing with respect to the ~~limitations set forth in the first sentence of this Section 10.6(c)~~Borrower. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) ~~Each Borrower, upon receipt of written notice from the relevant Lender,~~ The Borrower agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Home Products International Inc)

Successors and Assigns; Participations and Assignments. (a) ~~This~~ The provisions of this Agreement shall be binding upon and inure to the benefit of the ~~Borrowers, the Lenders, the Administrative Agent, all future holders of the Loans~~ parties hereto and their respective successors and ~~assigns~~assigns permitted hereby, except that no a Borrower may not assign or otherwise transfer any of its rights or obligations ~~under this Agreement~~ hereunder without the prior written consent of each Lender (~~except for~~ and any attempted assignment or transfer by a ~~Canadian Borrower~~Borrower without such consent shall be null and void). Nothing in this Agreement, ~~a Spanish Borrower~~ expressed or ~~a Swedish Borrower as~~ implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by ~~Section 7.3) and Lenders may sell participations in or assign all or any part~~ reason of ~~their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23~~this Agreement. (b) Any Lender ~~other than any Conduit Lender may, without the consent of any other party to this Agreement, in accordance with applicable law, at any time sell~~ may assign to one or more ~~Eligible Assignees (each,~~ assignees all or a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s portion 7of its rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Commitment and the Loans ~~and Revolving Commitments hereunder~~ at the time owing to ~~an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless~~ it); provided that (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except except in the case of an assignment to a ~~Lender,~~ Lender or a Lender ~~Affiliate or a Conduit Lender or an assignment~~ Affiliate, each of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent ~~otherwise consent~~must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed), provided that ~~(1) no such~~ the consent of the ~~Parent Borrower~~ Administrative Agent (which consent shall not be unreasonably withheld or delayed) shall be required if for any assignment to an ~~Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated~~ assignee in respect of ~~each Lender and its Lender Affiliates or Conduit Lenders~~any Revolving Facility which does not have a commitment in respect of such Revolving Facility immediately prior to giving effect to such assignment, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) ~~record the information contained therein~~ except in the ~~relevant Register on the effective date determined pursuant thereto. (g) For avoidance~~ case of ~~doubt the parties~~ an assignment to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any or a Lender ~~requiring Notes to facilitate transactions~~ Affiliate or an assignment of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.entire remaining

Appears in 1 contract

Sources: Credit Agreement (SPX Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrowers, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 13.7(a) as fully as if it were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~5.9, ~~2.18~~ 5.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 5.12 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~5.10, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Affiliate thereof or, with the ~~consent~~consent of the Company and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided (~~it being understood~~ i) that no such assignment to an Assignee (other than to any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement) and (ii) the assignor shall have commitments and Loans aggregating at least $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed ~~that~~ by the Company and the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, ~~and~~ (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto)) and (z) the Assignee thereunder shall automatically become a party to the Intercreditor Agreement and become a Secured Party (as defined therein) thereunder and have the rights and obligations of a Secured Party as set forth therein. Notwithstanding ~~the foregoing,~~ any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence provision of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.84

Appears in 1 contract

Sources: Credit Agreement (Dii Group Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Arrangers, the Agents, all ~~future~~ other holders of the ~~Loans~~ Obligations and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Arrangers, the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of the Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more Eligible Assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, in any ~~Revolving~~ Commitment of such Lender or any other economic interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section; and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any Affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed, it being understood that the Borrower may withhold its consent if any such assignment is to be made to a ~~portion~~ competitor of ~~its Loans~~ Borrower) and ~~Revolving Commitments hereunder~~ the Administrative Agent (provided that (x) no such consent need be obtained if (i) the Assignee is another Lender or an Affiliate of a Lender or (ii) the assignment is by a Lender to a Related Fund of such Lender, and (y) except with respect to any assignment to a competitor of the Borrower in any event the consent of the Borrower need not be obtained with respect to any assignment to an Eligible Assignee at any time when an Event of Default is continuing), to an additional Eligible Assignee (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit I, executed by such ~~Assignee,~~ Assignee and such Assignor (an “Assignment and ~~any other Person whose~~ Acceptance”) (and, where the consent of the Borrower or the Administrative Agent is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or, with respect to such Lender, any Affiliate, Control Investment Affiliate or Related Fund) shall be in an aggregate principal amount of less than $1,000,000 and, after giving effect thereto, the Assignor shall retain an Aggregate Exposure of no less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests under such Agreement), in each case unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureLoans. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be party hereto as a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(cLender). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such ~~Assignee~~Lender’s Commitment and Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (x) in connection with an assignment by a Lender to, with respect to such Lender, an Affiliate, a Control Investment Affiliate or a Related Fund, (y) in connection with an assignment by or to a L▇▇▇▇▇ Entity or (z) in the case of an Assignee that is already a Lender or is an Affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall ~~(i)~~ promptly accept such Assignment and ~~Assumption~~ Acceptance and ~~(ii)~~ record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for any Note of the assigning Lender) a new Note, as the case may be, to such Assignee or its registered assigns in an amount equal to the Loan, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Loans upon request, a new Note to the Assignor or its registered assigns in an amount equal to the Loans retained by it hereunder. Such new Note shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (gf) For the avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Second Lien Term Loan Agreement (Spanish Broadcasting System Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Company, the Borrower, the Lenders, the Collateral Agent, the Administrative Agent, all future holders of the Loans and/or Commitments and their respective successors and assigns, except that no none of the Borrower or the Company may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except ~~for any assignment by~~ in a ~~Canadian Borrower, a Spanish Borrower or a Swedish Borrower as~~ transaction permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.237.4). (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities other than an Ineligible Institution (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents (including such ▇▇▇▇▇▇’s participations in L/C Obligations and/or Swing Line Loans). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan and/or Commitment for all purposes under this ~~Agreement,~~ Agreement and the ~~Borrowers~~ other Loan Documents, the Participant will have no proprietary interest in the benefit of this Agreement or in any monies received by the Lender under or in relation to this Agreement (including in the bankruptcy or similar event of the Lender) and the Company, the other Lenders and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~▇▇▇▇▇▇’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal ~~of,~~ of or interest on, the Loans or any fees payable hereunder, or postpone the date of any scheduled amortization payment or the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower agrees~~ Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that ~~if amounts outstanding under~~ such Lender shall retain the sole right to enforce this Agreement and the ~~Loans are due or unpaid~~other Loan Documents and, ~~or shall have been declared or shall have become due and payable upon~~ other than as set forth in the ~~occurrence of an Event of Default, each Participant shall~~preceding sentence, to ~~the maximum extent permitted by applicable law~~approve any amendment, ~~be deemed to have the right~~ modification or waiver of ~~setoff in respect~~ any provision of ~~its participating interest in amounts owing under~~ this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the or any other ~~hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant~~Loan Document. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 (~~and~~ subject to the requirements and limitations ~~therein, including the requirements under~~ in Section ~~2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)~~2.19) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a ~~Lender;~~ Lender; provided ~~that, in the case of Section 2.18,~~ that such Participant ~~shall have complied with~~ (i) agrees to be subject to the ~~requirements~~ provisions of ~~said Section~~ Sections 2.21 and 2.22 as if it were ~~a Lender~~ an assignee under paragraph (c) of this Section and ~~provided, further, that no Participant~~ (ii) shall not be entitled to receive any greater amount pursuant to ~~any such~~ Section 2.18 or 2.19 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent such entitlement to ~~pay any~~ receive a greater amount ~~pursuant to Section 2.18 as~~ results from a ~~result of~~ change in law that occurs after the ~~transfer of a participation to a~~ Participant ~~than such Loan Party would have been required to pay absent such transfer~~acquired the applicable participation. Each Lender that sells a ~~participation shall~~participation, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant ~~Register”);~~ Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~commitments~~Commitments, ~~loans, letters of credit~~ Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such ~~commitment~~Commitment, ~~loan, letter of credit~~ Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income TaxRegulations. The entries in the Participant Register shall be conclusive absent manifest error, and such ~~Lender~~ Lender, each Loan Party and the Administrative Agent shall treat each ~~Person~~ person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Revolving Credit Facility (Taboola.com Ltd.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Arranger, the Agents, all future holders of the Loans and the Letters of Credit and their respective successors and assigns, except that no neither Holdings nor the Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Arranger, the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of the Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower, the Arranger and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to 103 110 any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Syndication Agent, ~~all~~ at any time and from time to time assign to any other Lender or ~~a portion~~ any affiliate or Control Investment Affiliate of ~~its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Lender or, with the ~~consent~~consent of the Borrower and the Agents and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not to be unreasonably withheld or delayed, ) (provided (x) that no such consent need be obtained by a Lehm▇▇ ▇▇▇ity for a period of 180 days following the Closing Date and (ay) the ~~Parent Borrower, unless (i)~~ consent of the ~~Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (~~Borrower need not be obtained with respect to ~~a Borrower~~any assignment of Term Loans), ~~has occurred~~ to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower or, the Agents or the Issuing Lender or the Swing Line Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 or, after giving effect thereto, result in such assigning Lender having a Commitment and/or outstanding Loans in an aggregate amount of less than $2,500,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower, the Syndication Agent and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be 104 a party hereto). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the Borrower marked "canceled". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such ~~Assignee~~Lender's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a Lehm▇▇ ▇▇▇ity or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the Assignor or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For the avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to 105 112 absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Osullivan Industries Holdings Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its commercial banking business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any ------------ Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents; provided that, in -------- the case of any such sale of a participating interest, the aggregate amount of the L/C Obligations and the aggregate amount of the Available Commitment being assigned is not less than $5,000,000 (or such lesser amount as may be agreed to by the Administrative Agent). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. ~~In no event~~ No Lender shall be entitled to create in favor of any ~~Participant under any~~ Participant, in the participation agreement pursuant to which such ~~participation have~~ Participant's participating interest shall be created or otherwise, any right to vote on, consent to or approve any ~~amendment or waiver of any provision of~~ matter relating to this ~~Agreement,~~ Agreement or any ~~consent to any departure by any Borrower therefrom,~~ other Loan Document except ~~to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ for those specified in clauses (i) and (ii) of the ~~final maturity of the Loans, in each case~~ proviso to ~~the extent subject to such participation~~subsection 10. 1. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the ~~maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent~~ maximum (a) as fully as if ~~the amount of its participating interest~~ it were ~~owing directly to it as~~ a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participanthereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 2.14, ~~2.18~~ 2.15 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.16 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of ~~Section 2.18~~-------- subsection 2.15, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ subsection and provided, further, that no Participant shall be entitled to -------- ------- receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its commercial banking business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Affiliate thereof or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of ~~(a)~~ the ~~Parent~~ Borrower, ~~unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred~~ each Issuing Bank and ~~is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from~~ the Administrative Agent ~~for such consent,~~ (~~b) the Administrative Agent, and (c) each Issuing Lender,~~ which in each case shall not be unreasonably withheld), to an additional bank or financial institution (an "Assignee") all or any part of its rights and obligations under -------- this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an Affiliate thereof, by the Borrower, each Issuing Bank and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed that such Assignee~~Register, 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, ~~notwithstanding anything~~ in the case of any such -------- assignment to an additional bank or financial institution, the ~~contrary in this Agreement or any~~ sum of the ~~Loan Documents, no Lender shall be entitled, without the consent~~ aggregate principal amount of the ~~Parent Borrower~~Loans, ~~to make an assignment under this Section 10.6(c) if such assignment would increase~~ the ~~cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ aggregate amount of the ~~date of such assignment or if, as~~ L/C Obligations and the aggregate amount of the ~~date of~~ Available Commitment being assigned is not less than $5,000,000 (or such ~~assignment, such assignment would increase~~ lesser amount as may be agreed to by the ~~cost under this Agreement to any~~ Borrower in and the ~~foreseeable future~~Administrative Agent). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this subsection, the ~~foregoing~~consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders -------- and the ~~Revolving~~ Commitment of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such AssigneeRegister. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Borrower. (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, ---------- subject to the provisions of subsection 10.15, any and all financial information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Borrower pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 10.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Conectiv Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no neither the Borrower nor the Restricted Subsidiaries may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no 72 79 event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 12.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; provided that, in the case of Section ~~2.18~~4.10, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Person (an "Assignee") all or ~~a portion~~ any part of its ~~Loans~~ rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit A, executed by such ~~Assignee,~~ Assignee and such ~~Assignor and any other Person whose consent is required pursuant to this paragraph,~~ assigning Lender and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant~~ Register (~~it being understood and agreed that such Assignee, if it shall not be~~ with a ~~Lender, shall deliver~~ copy 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities lawsBorrower); provided that, ~~notwithstanding anything~~ (i) no such assignment (other than to any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 and $1,000,000 multiples thereof, (ii) after giving effect to any such assignment, the assigning Lender (together with any Lender which is an affiliate of such assigning Lender) shall retain no less than 49% of its original Commitment, unless otherwise agreed to by the Borrower and (iii) each assignment (other than to any Lender or any affiliate thereof) shall be subject to the ~~contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the~~ prior written consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower ~~in the foreseeable future~~(which consent shall not be unreasonably withheld). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement. 73 80 (d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrower (~~and~~through the Administrative Agent), and the Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the ~~case~~ form of Exhibit N (an ~~Assignment~~ "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes. (e) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and ~~Assumption covering all of~~ that holds Alternative Note(s) (an ~~Assignor’s rights and obligations under this Agreement~~"Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such ~~Assignor~~ beneficial owner) shall ~~cease~~ deliver to be the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder a ~~party hereto~~Form W-8 (Certificate of Foreign Status of the U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities)~~. Notwithstanding~~ , together with an annual certificate stating that (i) such Alternative Noteholder or beneficial owner, as the ~~foregoing~~case may be, ~~any Conduit Lender~~ is not a "bank" within the meaning of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case may ~~assign~~ be, shall promptly notify the Borrower if at any time such Alternative Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard provide such certification to the ~~limitations set forth in~~ Borrower (or any other form of certification adopted by the ~~first sentence of this Section 10.6(c~~U.S. taxing authorities for such purposes). (df) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 12.6(f). (g) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in Section ~~10.2~~ 12.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ 74 81 amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (fh) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee ~~and any other Person whose consent is required by Section 10.6(c),~~ together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the ~~effective date determined pursuant thereto~~Lenders and the Borrower. (gi) Subject to Section 12.15, the Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the Transferee agreeing to be bound by the provisions of Section 12.15, any and all financial information in such Lender's possession concerning the Borrower and the Restricted Subsidiaries which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Restricted Subsidiaries prior to becoming a party to this Agreement. (j) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.. 12.7

Appears in 1 contract

Sources: Credit Agreement (Jones Intercable Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.20 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding and other amounts due hereunder from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, any affiliate thereof or ~~a portion of its Loans and Revolving Commitments hereunder to~~ an ~~Eligible Assignee (an “Assignee”)~~ Approved Fund or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee") all or any part of ~~(a) the Parent Borrower~~its rights and obligations under this Agreement pursuant to an Assignment and Acceptance, ~~unless~~ executed by (i) ~~the Assignee is a Lender or a Lender Affiliate or~~ such Assignee, (ii) ~~an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that~~ such ~~consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent~~Assignor, (biii) the Administrative Agent, (iv) with respect to assignments of rights and obligations under the Revolving Credit Facility, the Swingline Lender, (v) with respect to assignments of rights and obligations under the Revolving Credit Facility or the Tranche A LC Facility, the Issuing Lender and (cv) ~~each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose~~ the Borrower (which consent ~~is required pursuant to this paragraph~~of the Borrower shall not be unreasonably delayed or withheld), and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender, any affiliate thereof or an Approved Fund) shall be in an aggregate principal amount of less than $1,000,000, in each case other than in the case of an assignment of all of a Lender's interests under this Agreement, unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or~~ and Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, provided that such Assignor shall continue to be entitled to the benefits of the indemnity provisions hereunder for the period prior to the assignment). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ (i) the consent of the Borrower shall not be required for any assignment of funded Term Loans or for any assignment that occurs when an Event of Default shall have occurred and be continuing and (ii) the consent of the Borrower or and the Administrative Agent shall not be required for any assignment to a Lender, an Affiliate of a Lender or ~~all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~an Approved Fund. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, ~~and~~ the principal amount ~~(and stated interest)~~ of the Loans and Reimbursement Obligations of the Borrower owing ~~to,~~ to each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (with only one such fee payable in connection with simultaneous assignments to or by two or more Approved Funds), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto; provided, however, that no such fee shall be payable in the case of an assignment by a Lender to an affiliate of such Lender or an Approved Fund with respect to such Lender; and provided, further, that, in the case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (which funds are not then Lenders hereunder), only a single such fee shall be payable for all such contemporaneous assignments. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrower or the Administrative Agent, assign or pledge all or ay portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, to any trustee for or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities; provided that ~~the~~ any foreclosure ~~on any~~ or similar action by such ~~pledged Loan~~ trustee or representative shall be subject to the provisions ~~regarding restrictions on assignments contained in~~ of this Section ~~10.6~~10.6 regarding assignments. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Rent a Center Inc De)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Borrower, the Lenders, ~~the~~ Administrative Agent, Collateral Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may not assign or transfer any of its respective rights or obligations under this Agreement without the prior written consent of Administrative Agent, Collateral Agent and each Lender (~~except for~~ and any attempted assignment or transfer by ~~a Canadian Borrower, a Spanish~~ Borrower ~~or a Swedish Borrower as permitted by Section 7.3)~~ without such consent shall be null and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23void). (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of of, or notice to, Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than a Disqualified Lender or a Defaulting Lender) (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and ~~the Borrowers~~ ▇▇▇▇▇▇▇▇ and ~~the~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in each case~~ all Lenders pursuant to ~~the extent subject to such participation~~Section 9. 1. ~~Each~~ Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 9.8(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.11, such Participant shall have complied with the requirements of ~~said~~ Section ~~as if it were a Lender and~~ 2.11, and; provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation ~~shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,~~ shall 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 Commitments or the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each ~~Person~~ person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) ~~Any~~ Subject to the conditions set forth in clause (ii) below, any Lender ~~other than~~ and any ~~Conduit~~ Related Fund of any Lender (an “Assignor”) ~~shall be permitted~~ may assign to ~~assign~~one or more banks, ~~in accordance with applicable law~~financial institutions, investors or other entities (other than a Disqualified Lender, a natural person or any Management Affiliate) (“Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of Loans ~~and Revolving Commitments hereunder~~ at the time owing to ~~an Eligible Assignee (an “Assignee”~~it) with the ~~consent,~~ prior written consent (such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed) of Borrower and the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed if such Assignee is a Commercial Lending Institution) of Administrative Agent (a) and Borrower shall be deemed to have consented to any such assignment of any Loans unless it shall have objected thereto by written notice to Administrative Agent within ten Business Days after having received notice thereof to a Responsible Officer of the ~~Parent~~ Borrower~~, unless~~ ); provided (i) ~~the Assignee is~~ no consent of Borrower shall be required and Borrower may not object to any such assignment: (A) for any assignment of all or any portion of its rights or obligations under this Agreement (including Loans) to a Lender, an Affiliate of a Lender or a ~~Lender Affiliate~~ Related, or (iiB) if an Event of Default ~~under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower),~~ has occurred and is continuing~~; provided that such~~ ; (ii) no consent of Administrative Agent shall be ~~deemed given if~~ required for an assignment of all or any portion of its rights and obligations under this Agreement (including all or a portion of Loans at the ~~Parent Borrower has not responded within 15 days~~ time owing to it) to a Lender, an Affiliate of a ~~written request from~~ Lender or a Related Fund; and (iii) no consent of Borrower shall be required for an assignment of all or a portion of the ~~Administrative Agent for such consent,~~ L/C Obligations under this Agreement (bincluding all or a portion of the L/C Obligations owing to it); (d) ~~the Administrative Agent, and (c) each Issuing Lender, in each case~~ Each Assignment shall be made pursuant to an Assignment and Assumption, substantially in the form of Exhibit I (an “Assignment and Assumption”), executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of Administrative Agent is required pursuant to ~~this paragraph~~the foregoing provisions, by Administrative Agent) and delivered to ~~the~~ Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that (~~it being understood and agreed that~~ i) no such ~~Assignee~~assignment to an Assignee (other than any Lender, ~~if it~~ an Affiliate of a Lender or a Related Fund) shall ~~not~~ be in an aggregate principal amount of less than $1,000,000 (other than, in each case, in the case of an assignment of all of a Lender’s interests under this Agreement), ~~shall deliver~~ unless otherwise agreed by ▇▇▇▇▇▇▇▇ and Administrative Agent, (ii) the Assignor or Assignee has paid to ~~the~~ Administrative Agent ~~an administrative questionnaire~~ a processing and recordation fee in ~~which~~ the ~~Assignee designates one or more credit contacts to whom all syndicate-level information~~ amount of $3,500.00 (which fee may ~~contain material non-public information about~~ be waived or reduced in the ~~Parent Borrower~~ sole discretion of Administrative Agent), and ~~its Affiliates and their related parties or their respective securities~~(iii) only one such fee shall be payable in the case of concurrent assignments to Persons that, after giving effect to such assignments, 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); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureRelated Funds. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or~~ Commitments or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.10, 2.11 and 9.5 in respect of the period prior to such effective date). For purposes of the minimum assignment amounts set forth in this Section 9.7(c), multiple assignments by two or more Related Funds shall be aggregated. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Aggregate Exposure. Notwithstanding the foregoing, in the event that any ~~Conduit Lender may assign at~~ assignment of rights and obligations of any ~~time to its designating~~ Defaulting Lender hereunder shall become effective under applicable law without compliance with the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence provisions of this ~~Section 10.6(c)~~paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. (de) ~~The~~ Administrative Agent shall, on behalf of ~~the Borrowers~~▇▇▇▇▇▇▇▇, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and Assumption delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~▇▇▇▇▇▇▇▇, ~~the~~ Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any ~~Notes~~ Note evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption~~, and~~ ; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee.~~ Administrative Agent to Borrower marked “canceled”. The Register shall be available for inspection by Borrower or any Lender (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to any entry relating to such ~~assignment is delivered~~ ▇▇▇▇▇▇’s Loans) at any reasonable time and from time to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if anytime upon reasonable prior notice. (f) Upon its receipt of an Assignment and Assumption ~~in conformity with Section 10.6(c),~~ executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.7(c), ~~together with payment to the Administrative Agent of a registration and processing fee of US$3,500~~by each such other Person), ~~the~~ Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to Borrower. On or prior to such effective date, Borrower, at its own expense, upon request, shall execute and deliver to Administrative Agent (in exchange for the ~~effective date determined~~ applicable Note, if any, of the assigning Lender) a new Note or Notes to such Assignee in an amount equal to the Commitment or Loan assumed or acquired by it pursuant ~~thereto~~to such Assignment and Assumption and, if the Assignor has retained a Commitment or Loan, as the case may be, upon request, a new Note or Notes to the Assignor in an amount equal to the Commitment or Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.7 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Notes, ~~including~~ including, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (HighPeak Energy, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Borrower, the Lenders, ~~the~~ Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities other than to a Competitor (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and ~~the Borrowers~~ Borrower and ~~the~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.17 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. ~~For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of~~ Each Lender that sells a participation agrees, at the Borrower’s request and expense, to ~~a Participant than such Loan Party would have been required~~ use reasonable efforts to ~~pay absent such transfer~~cooperate with the Borrower to effectuate the provisions of Section 2.19 with respect to any Participant. Each Lender that sells a participation shall, acting solely for this purpose as ~~a non-fiduciary~~ an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register ~~to any Person~~ (including the identity of any Participant or any information relating to a Participant’s interest in any ~~commitments~~Commitments, ~~loans~~Loans, ~~letters~~ Letters of ~~credit~~ Credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such ~~commitment~~Commitment, ~~loan~~Loan, ~~letter~~ Letter of ~~credit~~ Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income TaxRegulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Eligible Assignee all or ~~a portion~~ any part of its ~~Loans~~ rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Eligible Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to ~~the~~ Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ unless otherwise agreed by Borrower and Administrative Agent no such assignment to ~~the contrary in this Agreement~~ an Eligible Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this Agreement. For purposes of the ~~Loan Documents~~proviso contained in the preceding sentence, ~~no Lender~~ the amount described therein shall be ~~entitled~~aggregated in respect of each Lender and its Lender Affiliates, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureany. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of Borrower shall not be required for any ~~Borrower~~ assignment to a Lender or ~~the Administrative Agent~~ an Affiliate of a Lender or for any ~~or all~~ assignment that occurs when an Event of ~~the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) ~~The~~ Administrative Agent shall, on behalf of ~~the Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~Borrower, ~~the~~ each other Loan Party, Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated ~~Assignee, if requested by such~~ Eligible Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Eligible Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to ~~the~~ Administrative Agent of a registration and processing fee of ~~US$~~$3,500, ~~the~~ Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) ~~Each~~ Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (CalAtlantic Group, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender may, without~~ may in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. ~~In no event~~ No Lender shall permit any Participant ~~under any such participation~~ to have ~~any~~ (and no participant shall have) the right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided ~~that,~~ that in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~subsection 10.7 (a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 2.16, 2.17 and 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; , provided ~~that,~~ that in the case of ~~Section 2.18~~subsection 2.17, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ subsection and ~~provided, further,~~ provided further that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in the ordinary course of its business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, affiliate or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ Approved Fund thereof or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor (and, in the case of an Assignee that is not then a Lender, an affiliate thereof or an Approved Fund, by the Borrower and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register, provided, that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof or an Approved Fund) shall be in an aggregate principal amount of less than $2,500,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (xA) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (yB) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this subsection 10.6, the ~~foregoing~~consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the Assignor, Notes shall not be required to be executed and delivered by the Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 8(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan or other obligation hereunder (whether or not evidenced by a Note, ) shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower of any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor~~Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender, an ~~Assignee~~ affiliate thereof or an Approved Fund, by the Borrower and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant ~~thereto~~thereto and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, upon request the Borrower, at its own expense, shall execute and deliver to the Administrative Agent (in exchange for any Revolving Credit Note, Term Note or Swingline Note of the assigning Lender) a new Revolving Credit Note, Term Note or Swingline Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment, Delayed Term Loan Commitment or portion of the Committed Term Loans or Incremental Term Loans, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or Delayed Term Loan Commitment or portion of a Committed Term Loan or Incremental Term Loan hereunder, a new Revolving Credit Note, 95 90 Committed Term Note or Incremental Term Note, as the case may be, to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment or Delayed Term Loan Commitment or Committed Term Loan or Incremental Term Loan, as the case may be, retained by it hereunder. Such new Notes shall be in the form of the Note replaced thereby. (f) The Borrower agrees that, upon request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender (i) a promissory note of the Borrower evidencing the Revolving Credit Loans of such Lender, substantially in the form of Exhibit I-1 (each as amended, supplemented, replaced or otherwise modified from time to time, a "Revolving Credit Note"), and/or (ii) a promissory note of the Borrower evidencing the applicable Term Loan of such Lender, substantially in the form of Exhibit I-2 (each as amended, supplemented, replaced or otherwise modified from time to time, a "Term Note"), and/or (iii) a promissory note of the Borrower evidencing the Swingline Loans of the Swingline Lender, substantially in the form of Exhibit I-3) (as amended, supplemented, replaced or otherwise modified from time to time, the "Swingline Note"). (g) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information concerning the Loan Parties and their respective affiliates which has been delivered to such Lender by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document or which has been delivered to such Lender by or on behalf any Loan Party in connection with such Lender's credit evaluation of the Loan Parties and their respective affiliates, under the condition that such Transferee or prospective Transferee shall previously have agreed to be bound by the provisions of subsection 10.15. (h) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section~~ subsection 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law; , provided that ~~the foreclosure on~~ no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such lender as a party hereunder. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (STC Broadcasting Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Gannett, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~no Borrower~~ Gannett may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~Gannett or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and ~~the Borrowers~~ Gannett and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by ~~any Borrower~~ Gannett therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower~~ Gannett agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 9.7(a) as fully as if it were a Lender hereunder. ~~Each Borrower~~ Gannett also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.15 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or, with the consent of Gannett and the Administrative Agent (which, in each case, shall not be unreasonably withheld, delayed or conditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a ~~portion~~ Lender should notify the Borrower as promptly as possible of any request for assignment and the Borrower, in turn, should promptly consider such request for assignment; and (ii) Gannett’s consent shall not be considered to be unreasonably withheld, delayed or conditioned if Gannett withholds, delays or conditions its ~~Loans and Revolving Commitments hereunder~~ consent because, among other factors, it is concerned about a potential Assignee’s capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ unless otherwise agreed by Gannett and the Administrative Agent, no such assignment to ~~the contrary in this Agreement~~ an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $10,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this Agreement. For purposes of the ~~Loan Documents~~proviso contained in the preceding sentence, ~~no Lender~~ the amount described therein shall be ~~entitled~~aggregated in respect of each Lender and its Lender Affiliates, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureany. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 9.6, the consent of Gannett shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any Borrower~~ Gannett or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~9.6(c). (d) The Administrative Agent shall, on behalf of ~~the Borrowers~~Gannett, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~Gannett, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any ~~Notes~~ promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a ~~Note~~promissory note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant Register (and each Note shall expressly so provide)~~Register. Any assignment or transfer of all or part of a Loan evidenced by a ~~Note~~ promissory note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the ~~Note~~ promissory note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new ~~Notes may~~ promissory notes shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is a Lender Affiliate of the relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender to ~~any~~ secure obligations to a Federal Reserve Bank in accordance with applicable law; provided that ~~the foreclosure on~~ no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) ~~Each Borrower~~Gannett, upon receipt of written notice from the relevant Lender, agrees to issue ~~Notes~~ a promissory note to any Lender requiring ~~Notes~~ such a note to facilitate transactions of the type described in paragraph (gf) above. (ih) Each ~~Borrower~~of Gannett, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit ~~Lender during such period of forbearance~~Lender.

Appears in 1 contract

Sources: Revolving Credit Agreement (Gannett Co Inc /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Arrangers, the Agents, all ~~future~~ other holders of the ~~Loans~~ Obligations and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Arrangers, the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of the Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more Eligible Assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, in any ~~Revolving~~ Commitment of such Lender or any other economic interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section; and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any Affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of the Borrower (which consent shall not be unreasonably withheld or delayed, it being understood that the Borrower may withhold its consent if any such assignment is to be made to a ~~portion~~ competitor of ~~its Loans~~ Borrower) and the Administrative Agent and, in the case of any assignment of Revolving ~~Commitments hereunder~~ Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that (x) no such consent need be obtained if (i) the Assignee is another Lender or an Affiliate of a Lender or (ii) the assignment is by a Lender to a Related Fund of any Lender, and (y) except with respect to any assignment to a competitor of the Borrower, in any event the consent of the Borrower need not be obtained with respect to any assignment to an Eligible Assignee at any time when an Event of Default is continuing), to an additional Eligible Assignee (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit I, executed by such ~~Assignee,~~ Assignee and such Assignor (an “Assignment and ~~any other Person whose~~ Acceptance”) (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lender or the Swing Line Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or, with respect to such Lender, any Affiliate, Control Investment Affiliate or Related Fund) shall be in an aggregate principal amount of less than $1,000,000 (in the case of the Term Loan) and $5,000,000 (in the case of the Revolving Credit Commitment or Revolving Credit Loans) and, after giving effect thereto, the Assignor shall retain an Aggregate Exposure of no less than $1,000,000 ($5,000,000 in the case of the Revolving Credit Commitment or Revolving Credit Loans) (other than in the case of an assignment of all of a Lender’s interests under such Agreement), in each case unless otherwise agreed ~~that~~ by the Borrower and the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be party hereto as a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(cLender). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such ~~Assignee~~Lender’s Commitment and Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (x) in connection with an assignment by a Lender to, with respect to such Lender, an Affiliate, a Control Investment Affiliate or a Related Fund, (y) in connection with an assignment by or to a L▇▇▇▇▇ Entity or (z) in the case of an Assignee that is already a Lender or is an Affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall ~~(i)~~ promptly accept such Assignment and ~~Assumption~~ Acceptance and ~~(ii)~~ record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for any Revolving Credit Note and/or Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Notes, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment and/or Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the Assignor or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For the avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: First Lien Credit Agreement (Spanish Broadcasting System Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Borrower, the Lenders, ~~the~~ Administrative Agent, Collateral Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may not assign or transfer any of its respective rights or obligations under this Agreement without the prior written consent of Administrative Agent, Collateral Agent and each Lender (~~except for~~ and any attempted assignment or transfer by ~~a Canadian Borrower, a Spanish~~ Borrower ~~or a Swedish Borrower as permitted by Section 7.3)~~ without such consent shall be null and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23void). (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of of, or notice to, Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than a Disqualified Lender or a Defaulting Lender) (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and ~~the Borrowers~~ ▇▇▇▇▇▇▇▇ and ~~the~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in each case~~ all Lenders pursuant to ~~the extent subject to such participation~~Section 9. 1. ~~Each~~ Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 9.8(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.11, such Participant shall have complied with the requirements of ~~said~~ Section ~~as if it were a Lender and~~ 2.11, and; provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation ~~shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,~~ shall 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 Commitments or the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each ~~Person~~ person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) ~~Any~~ Subject to the conditions set forth in clause (ii) below, any Lender ~~other than~~ and any ~~Conduit~~ Related Fund of any Lender (an “Assignor”) ~~shall be permitted~~ may assign to ~~assign~~one or more banks, ~~in accordance with applicable law~~financial institutions, insurance companies or other entities (other than a Disqualified Lender, a natural person or any Management Affiliate to the extent prohibited by Section 9.7(i)) (“Assignees”) all or a portion of its rights and obligations under this Agreement (including all or a portion of Loans ~~and Revolving Commitments hereunder~~ at the time owing to ~~an Eligible Assignee (an “Assignee”~~it) with the ~~consent,~~ prior written consent (such consent not to be unreasonably ~~withheld~~ withheld, conditioned or delayed, ) of Borrower and Administrative Agent (a) and Borrower shall be deemed to have consented to any such assignment of any Loans unless it shall have objected thereto by written notice to Administrative Agent within ten Business Days after having received notice thereof to a Responsible Officer of the ~~Parent~~ Borrower~~, unless~~ ); provided: (i) no consent of Borrower shall be required, and Borrower may not object to any such assignment: (A) prior to the ~~Assignee is~~ first date on which at least 40% of the aggregate principal amount of the Loans outstanding on the Closing Date have been assigned to one or more Persons other than one or more of the Lenders as of the fifth Business Day following the Closing Date; (B) for any assignment of all or any portion of its rights and obligations under this Agreement (including Loans) to a Lender, an Affiliate of a Lender or ~~a Lender Affiliate~~ an Related Fund, or (iiC) if an Event of Default ~~under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower),~~ has occurred and is continuing; ~~provided that such~~ and (ii) no consent of Administrative Agent shall be ~~deemed given if~~ required for an assignment of all or any portion of its rights and obligations under this Agreement (including all or a portion of Loans at the ~~Parent Borrower has not responded within 15 days~~ time owing to it) to a Lender, an Affiliate of a ~~written request from the Administrative Agent for such consent,~~ Lender or an Related Fund; (bd) ~~the Administrative Agent, and (c) each Issuing Lender, in each case~~ Each Assignment shall be made pursuant to an Assignment and Assumption, substantially in the form of Exhibit I (an “Assignment and Assumption”), executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of Administrative Agent is required pursuant to ~~this paragraph~~the foregoing provisions, by Administrative Agent) and delivered to ~~the~~ Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that (~~it being understood and agreed that~~ i) no such ~~Assignee~~assignment to an Assignee (other than any Lender, ~~if it~~ an Affiliate of a Lender or a Related Fund) shall ~~not~~ be in an aggregate principal amount of less than $1,000,000 (other than, in each case, in the case of an assignment of all of a Lender’s interests under this Agreement), ~~shall deliver~~ unless otherwise agreed by ▇▇▇▇▇▇▇▇ and Administrative Agent, (ii) the Assignor or Assignee has paid to ~~the~~ Administrative Agent ~~an administrative questionnaire~~ a processing and recordation fee in ~~which~~ the ~~Assignee designates one or more credit contacts to whom all syndicate-level information~~ amount of $3,500.00 (which fee may ~~contain material non-public information about~~ be waived or reduced in the ~~Parent Borrower~~ sole discretion of Administrative Agent), and ~~its Affiliates and their related parties or their respective securities~~(iii) only one such fee shall be payable in the case of concurrent assignments to Persons that, after giving effect to such assignments, 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); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureRelated Funds. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or~~ Commitments or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.10, 2.11 and 9.5 in respect of the period prior to such effective date). For purposes of the minimum assignment amounts set forth in this Section 9.7(c), multiple assignments by two or more Related Funds shall be aggregated. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Aggregate Exposure. Notwithstanding the foregoing, in the event that any ~~Conduit Lender may assign at~~ assignment of rights and obligations of any ~~time to its designating~~ Defaulting Lender hereunder shall become effective under applicable law without compliance with the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence provisions of this ~~Section 10.6(c)~~paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. (de) ~~The~~ Administrative Agent shall, on behalf of ~~the Borrowers~~▇▇▇▇▇▇▇▇, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and Assumption delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~▇▇▇▇▇▇▇▇, ~~the~~ Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any ~~Notes~~ Note evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption~~, and~~ ; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee.~~ Administrative Agent to Borrower marked “canceled”. The Register shall be available for inspection by Borrower or any Lender (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to any entry relating to such ~~assignment is delivered~~ ▇▇▇▇▇▇’s Loans) at any reasonable time and from time to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if anytime upon reasonable prior notice. (f) Upon its receipt of an Assignment and Assumption ~~in conformity with Section 10.6(c),~~ executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.7(c), ~~together with payment to the Administrative Agent of a registration and processing fee of US$3,500~~by each such other Person), ~~the~~ Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to Borrower. On or prior to such effective date, Borrower, at its own expense, upon request, shall execute and deliver to Administrative Agent (in exchange for the ~~effective date determined~~ applicable Note, if any, of the assigning Lender) a new Note or Notes to such Assignee in an amount equal to the Commitment or Loan assumed or acquired by it pursuant ~~thereto~~to such Assignment and Assumption and, if the Assignor has retained a Commitment or Loan, as the case may be, upon request, a new Note or Notes to the Assignor in an amount equal to the Commitment or Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.7 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Notes, ~~including~~ including, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) ~~Each~~ Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by the Granting Lender to Administrative Agent and Borrower, ~~upon receipt~~ the option to provide to Borrower all or any part of ~~written notice from the relevant Lender, agrees~~ any Loan that such Granting Lender would otherwise be obligated to ~~issue Notes~~ make to ~~any Lender requiring Notes~~ Borrower pursuant to ~~facilitate transactions of the type described in paragraph (g) above.~~ this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to make any Loan, (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) such SPV and the applicable Loan or any applicable part thereof, shall be appropriately reflected in the Participant Register. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each ~~Borrower~~party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees (which agreement shall survive the ~~Administrative Agent each hereby confirms~~ termination of this Agreement) that, prior to the date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of ~~the latest maturing~~ all outstanding commercial paper ~~note issued by~~ or other indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such ~~Conduit Lender; provided~~SPV any bankruptcy, ~~however~~reorganization, ~~that each Lender designating~~ arrangement, insolvency or liquidation proceedings under the laws of the United States or any ~~Conduit Lender hereby agrees~~ state thereof. In addition, notwithstanding anything to ~~indemnify~~the contrary in this Section 9.7(h), ~~save~~ any SPV may (x) with notice to, but without the prior written consent of, Borrower and ~~hold harmless each other party hereto for~~ Administrative Agent and without paying any ~~loss~~processing fee therefor, ~~cost, damage~~ assign all or ~~expense arising out~~ a portion of its ~~inability~~ interests in any Loans to ~~institute~~ the Granting Lender, or with the prior written consent of Borrower and Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed) to any financial institutions providing liquidity or credit support to or for the account of such SPV to support the funding or maintenance of Loans, and (y) disclose on a ~~proceeding against~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such ~~Conduit~~ SPV; provided that non-public information with respect to Borrower may be disclosed only with Borrower’s consent which will not be unreasonably withheld, conditioned or delayed. This Section 9.7(h) may not be amended without the written consent of any SPV with Loans outstanding at the time of such proposed amendment. (i) Notwithstanding anything to the contrary contained herein (x) no assignment shall be permitted to any Management Affiliate which results in the Management Affiliates collectively holding more than 33% in aggregate principal amount of then outstanding Loans and (y) Loans held by any Management Affiliate shall not have the right to vote on any action to be taken hereunder or any Loan Document or to be taken into account in determining the “Required Lenders.” (j) [Reserved]. (k) Any Lender ~~during~~ may, so long as no Default or Event of Default has occurred and is continuing, at any time, may assign all or a portion of its rights and obligations with respect to Loans under this Agreement to Borrower or any of its Subsidiaries through Dutch auctions open to all Lenders on a pro rata basis in accordance with the procedures described below; provided that, in connection with assignments pursuant to this clause (k): (i) (a) the principal amount of such ~~period of forbearance.~~Loans, along with all accrued and unpaid interest thereon, so contributed, assigned or transferred to Borrower or a Subsidiary shall be deemed automatically cancelled an

Appears in 1 contract

Sources: Credit Agreement (HighPeak Energy, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~each Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrowers, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.20 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or Approved Fund or, with the ~~consent~~consent of the Parent Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or Approved Fund, by the Parent Borrower and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the 85 80 Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood and agreed that such Assignee, if it~~ other than any Lender or any affiliate thereof) shall ~~not~~ be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), shall deliver to the Administrative Agent an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about unless otherwise agreed by the Parent Borrower and ~~its Affiliates and their related parties or their respective securities) will~~ the Administrative Agent. Any such assignment need not be ~~made available and who may receive~~ ratable as among the Facilities. Any such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any assignment of ~~the Loan Documents, no Lender~~ an Additional US$ Revolving Credit Commitment shall be ~~entitled~~to a Person that is, ~~without~~ or has an Affiliate that is, a Schedule I or Schedule II chartered bank under the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureBank Act (Canada). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have (in addition to any rights and obligations theretofore held by it) the rights and obligations of a Lender hereunder with a Revolving ~~Commitment~~ Credit Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the ~~foregoing~~consent of the Parent Borrower shall not be required, and, unless requested by the Assignee and/or the Assignor, new Notes shall not be required to be executed and delivered by the applicable Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 8(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Revolving ~~Commitment~~ Credit Commitments of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~each Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan or other obligation hereunder (whether or not evidenced by a Note, ) shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such AssigneeRegister. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Parent Borrower and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (f) The Loans made by each Lender shall be evidenced by a Note issued by the applicable Borrower, substantially in the form of Exhibit G-1, G- 2 (with appropriate modifications in the case of Additional US$ Revolving Credit Loans and C$ Revolving Credit Loans), G-3 or G-4, as the case may be, payable to the order of such Lender. Each Lender is hereby authorized to record, on the schedule annexed to and constituting a part of the relevant Note, information regarding the relevant Loans made by such Lender, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided that the failure to make any such recordation or any error in such recordation shall not affect such Borrower's obligations hereunder or under any Note. On or prior to the effective date of an Assignment and Acceptance, the applicable Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the relevant Notes, new Notes to the order of the Assignee and, if applicable, the Assignor. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. (g) Each Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information concerning the Loan Parties and their respective affiliates which has been delivered to such Lender by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document or which has been delivered to such Lender by or on behalf any Loan Party in connection with such Lender's credit evaluation of the Loan Parties and their respective 86 81 affiliates, under the condition that such Transferee or prospective Transferee shall previously have agreed to be bound by the provisions of Section 10.16. (h) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (International Home Foods Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or but unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~subsection 10.7 (a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 2.14, ~~2.18~~ 2.15 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.16 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of ~~Section 2.18~~subsection 2.15, such Participant shall have complied with the requirements of ~~said Section as if it were a Lender~~ such subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to (i) any Lender or ~~a portion~~ any affiliate thereof (provided that the consent of ~~its Loans and~~ such Issuing Lender shall be obtained in connection with any assignment of Revolving Commitments ~~hereunder~~ to an ~~Eligible Assignee~~ affiliate of a Lender), (~~an “Assignee”~~ii) with the ~~consent~~consent of the Borrower, the Administrative Agent and such Issuing Lender, (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit D, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower, the Administrative Agent or such Issuing Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower or the Borrower and such other Persons, as the case may be) and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything to~~ unless otherwise agreed by the ~~contrary~~ Borrower and the Administrative Agent, and except in ~~this Agreement or any~~ the case of ~~the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make~~ an assignment ~~under this Section 10.6(c) if such assignment would increase the cost~~ by a Lender of all of its Revolving Commitment and/or Loans under this Agreement and the Revolving Credit Agreement, (i) no assignment to an Assignee (other than any ~~Borrower, including without limitation under Section 2.17~~ Lender or ~~2.18, as~~ any affiliate thereof) of ~~the date of such assignment~~ Revolving Commitment and/ or ~~if, as of the date of such assignment, such assignment would increase the cost~~ Loans under this Agreement shall be in an amount which, when aggregated with the amount of Revolving Commitment and/ or Loans under (and as defined in) the Revolving Credit Agreement assigned concurrently with such assignment hereunder, is less than $5,000,000 and (ii) after giving effect to any ~~Borrower~~ assignment hereunder, the Assignor must have Revolving Commitment and/or Loans under this Agreement in an amount which, when aggregated with the ~~foreseeable future~~amount of Revolving Commitment and/ or Loans of such Assignor under (and as defined in) the Revolving Credit Agreement, is at least $10,000,000. Each assignment of Revolving Commitments and/or Loans by a Lender must be accompanied by an assignment by such Assignor Lender to the same Assignee of a proportionate amount of such Assignor Lender's Revolving Commitments and/or Loans under (and as defined in) the Revolving Credit Agreement. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this subsection 10.6(c), the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.or

Appears in 1 contract

Sources: 364 Day Revolving Credit Agreement (Tesoro Petroleum Corp /New/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.17 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time, subject to the consent of the Syndication Agent, assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower and the Agents (which, in each case, shall not to be unreasonably withheld or delayed~~, of~~ ) (~~a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~provided that no such consent need be obtained for assignments involving ▇▇▇▇▇▇ Commercial Paper Inc.), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee, such ~~Assignor~~ Assignor, the Syndication Agent and ~~any other Person whose~~ the Administrative Agent (and, where the consent of the Borrower is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower, the Syndication Agent and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 8(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing ~~the Loans~~ such Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated ~~Assignee, if requested~~ Assignee and the old Notes shall be returned by ~~such Assignee~~the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor~~assigning Lender, an Assignee and ~~any other~~ the Syndication Agent (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person ~~whose consent is required~~ under common management with such Lender, by ~~Section 10.6(c)~~the Borrower, the Administrative Agent and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable in connection with an assignment by ▇▇▇▇▇▇ Commercial Paper Inc.), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Imperial Holly Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its commercial banking business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement54 49 (a). In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~subsection 10.7 (a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 3.9, ~~2.18~~ 3.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 3.11 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of ~~Section 2.18~~subsection 3.10, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its commercial banking business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion~~ any Affiliate thereof of ~~its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ comparable credit-worthiness or, with the ~~consent, not to be unreasonably withheld~~ consent of the Borrower (unless a Default or ~~delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii)~~ an Event of Default ~~under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has~~ shall have occurred and is be continuing~~; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from~~ ) and the Administrative Agent ~~for such consent,~~ (~~b) the Administrative Agent, and (c) each Issuing Lender,~~ which in each case shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit H, executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an Affiliate thereof, by the Borrower and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed that such Assignee~~Register, 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, ~~notwithstanding anything~~ in the case of any such assignment to an additional bank, financial institution or other entity , the ~~contrary in this Agreement or any~~ sum of the ~~Loan Documents~~aggregate principal amount of the Loans and the aggregate amount of the unused Revolving Credit Commitment being assigned shall be not less than $10,000,000 and, no if such assignment is of less than all of the rights and obligations of the assigning Lender, the sum of the aggregate principal amount of the Revolving Credit Loans and the aggregate amount of the unused Revolving Credit Commitment remaining with the assigning Lender shall be ~~entitled, without~~ not less than $10,000,000 (or such lesser amount as may be agreed to by the ~~consent of~~ Borrower and the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAdministrative Agent). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment 55 50 and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a Revolving ~~Commitment and/or Loans~~ Credit Commitments as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Revolving ~~Commitment~~ Credit Commitments of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an Affiliate thereof, by the Borrower (if required) and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Borrower. (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the provisions of subsection 10.14, any and all financial information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Borrower pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of such and its Affiliates prior to becoming a party to this Agreement. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 10.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Boston Scientific Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of Parent, the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the ~~Loans~~ Advances and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of the Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any ~~Loan~~ Advance owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such ~~Loan~~ Advance for all purposes under this ~~Agreement~~Agreement and the other Credit Documents, and the ~~Borrowers~~ Borrower, the Arranger and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Credit Document, or any consent to any departure by any ~~Borrower~~ Advance Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in~~ each ~~case~~ “directly modified” Lender pursuant to ~~the extent subject to such participation~~Section 10.01(a). ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the ~~Loans~~ Advances are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 8.06(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.08, ~~2.18~~ 2.09, 2.11 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 10.07 with respect to its participation in the ~~Revolving~~ Commitments and the ~~Loans~~ Advances outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.11, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. ~~For the avoidance of doubt~~In addition, ~~no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of~~ each transferor Lender selling a participation to a Participant ~~than such Loan Party would have been required to pay absent such transfer. Each Lender that sells~~ under this Section 10.06(b): (i) shall keep a ~~participation shall~~register, ~~acting solely for this purpose as a non-fiduciary agent~~ meeting the requirements of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section Treasury Regulation section 5f.103-1(c), of each such Participant, specifying such Participant’s entitlement to payments of principal and interest with respect to such participation, and (ii) ~~of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that~~ shall collect from each such Participant ~~dealt at arm’s length with~~ the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such ~~Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the~~ Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such were a Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Registerunder Section 2.11. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate, Related Fund or Control Investment Affiliate thereof or, with the ~~consent~~consent of the Borrower (to the extent no Default or Event of Default is then-continuing), which consent of the Borrower shall not to be unreasonably withheld or delayed, and the Administrative Agent and, in the case of any assignment of Revolving Commitments, the written consent of the Issuing Bank (awhich, in each case, shall not be unreasonably withheld or delayed) (provided (y) that no such consent need be obtained by the Administrative Agent or its affiliates and (z) the ~~Parent Borrower, unless (i)~~ consent of neither the ~~Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (~~Administrative Agent nor the Borrower need be obtained with respect to ~~a Borrower~~any assignment of funded Term Advances), ~~has occurred~~ to an additional Eligible Assignee all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit C, executed by such ~~Assignee,~~ Eligible Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower, the Administrative Agent or the Issuing Bank is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that (~~it being understood~~ A) no such assignment to an Eligible Assignee (other than, in each case, any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $1,000,000 (in the case of the Term Loan Facility) or $5,000,000 (in the case of the Revolving Credit Facility), unless (1) otherwise consented to by the Borrower (so long as no Default or Event of Default is then-continuing) and ~~agreed that~~ the Administrative Agent, which such ~~Assignee, if it~~ consents shall not be unreasonably withheld or delayed or (2) such assignment represents an assignment of all of 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost interests under this Agreement and (B) if the Assignor shall retain any Advances or Commitments after giving effect to ~~any Borrower~~such assignment such Advances and Commitments shall, ~~including without limitation under Section 2.17 or 2.18~~unless otherwise agreed by the Borrower and the Administrative Agent, as be in an aggregate principal amount of not less than $1,000,000 (in the case of the ~~date~~ Term Loan Facility) and $5,000,000 (in the case of the Revolving Credit Facility). Any such assignment ~~or if,~~ need not be ratable as of among the ~~date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~Revolving Credit Facility and Term Loan Facility. Upon such execution, delivery, acceptance and recording in the ~~Register pursuant to Section 10.6(d)~~Register, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Eligible Assignee thereunder shall be a party hereto (with respect to the interest assigned) and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or ~~Loans~~ Advances as set forth therein, in addition to any rights and obligations theretofore held by it as a Lender, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Section 2.09, 2.11 and 10.04 and 10.07 in respect of the period prior to such effective date). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all~~ Default shall have occurred and be continuing. For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in ~~the first sentence of~~ this ~~Section 10.6(c)~~paragraph, multiple assignments by or to two or more Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 10.02 a copy of each Assignment and Assumption delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the ~~names~~ name and ~~addresses~~ address of ~~the Lenders~~ each Lender and ~~the Revolving Commitment of~~each Issuing Bank, each Lender’s Commitment, each Lender’s and each Issuing Bank’s interest in each Advance, each Letter of Credit and each Letter of Credit Obligation, and in the ~~principal amount (~~right to receive any payments hereunder and ~~stated interest)~~ any assignment of ~~the Loans owing to, each Lender from time to time~~any such interest or rights. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative ~~Agent~~ Agent, the Lenders and the ~~Lenders~~ Issuing Banks shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and~~ Advances, any Notes evidencing ~~the Loans~~ such Advances and any Reimbursement Obligation recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan~~Advance, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of ~~a Loan~~ an Advance evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such ~~Loan~~Advance, accompanied by a duly executed Assignment and Assumption~~, and~~ ; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Eligible Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower, any Lender (with respect to any entry relating to such ~~Assignee~~Lender’s Advances) or any Issuing Bank (with respect to any entry relating to the Borrower’s Letter of Credit Obligations owed to such Issuing Bank) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption ~~in conformity with Section 10.6(c),~~ executed by an ~~Assignor~~Assignor and an Eligible Assignee (and, ~~an Assignee and~~ in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~10.06(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (if required by the Administrative Agent and, in any case treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment), the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Note, PIK Obligation Notes and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Note, PIK Obligation Note and/or applicable Term Notes, as the case may be, to the order of such Eligible Assignee and its registered assigns in an amount equal to the Revolving Commitment and/or applicable Term Advances, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Assumption and, if the Assignor has retained a Revolving Commitment, PIK Obligation and/or Term Advances, as the case may be, upon request, a new Revolving Note, PIK Obligation Note and/or Term Notes, as the case may be, to the order of the Assignor and its registered assigns in an amount equal to the Revolving Commitment, PIK Obligation and/or applicable Term Advances, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For the avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Advances and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Advances and Notes, including any pledge or assignment by a Lender of any Loan or Note to (i) any Federal Reserve Bank in accordance with applicable law, (ii) any holder of, or trustee for the benefit of, the holders of such Lender’s securities or (iii) any SPC to which such Lender granted an option pursuant to clause (g) below. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Advance that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) nothing herein shall constitute a commitment by any SPC to make any Advance and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Advance, the Granting Lender shall be obligated to make such Advance pursuant to the terms hereof. The making of a Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Advance were made by such Granting Lender. Each ~~Borrower~~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 Lender). In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees (which agreement shall survive the ~~Administrative Agent each hereby confirms~~ termination of this Agreement) that, prior to the date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of ~~the latest maturing~~ all outstanding commercial paper ~~note issued by~~ or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such ~~Conduit Lender; provided~~SPC any bankruptcy, ~~however~~reorganization, ~~that each Lender designating~~ arrangement, insolvency or liquidation proceedings under the laws of the United States or any ~~Conduit Lender hereby agrees~~ state thereof. In addition, notwithstanding anything to ~~indemnify~~the contrary in this Section 10.06(g), ~~save~~ any SPC may (A) with notice to, but without the prior written consent of, the Borrower and ~~hold harmless each other party hereto for~~ the Administrative Agent and without paying any ~~loss~~processing fee therefor, ~~cost, damage~~ assign all or ~~expense arising out~~ a portion of its ~~inability~~ interests in any Advances to ~~institute~~ the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Advances, and (B) disclose on a ~~proceeding against~~ confidential basis any non-public information relating to its Advances to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such ~~Conduit~~ SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of any SPC with Advances outstanding at the time of such proposed amendment. In addition, each Granting Lender ~~during~~ granting an SPC the option to provide to the Borrower all or any part of any Advance that such ~~period~~ Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement, (i) shall keep a register, meeting the requirements of ~~forbearance.~~Treasury Regulation section 5f.103-1(c), of each SPC which has funded all or any part of any Advance that such Lender would have otherwise been obligated to make to the Borrower pursuant to this Agreement, specifying such SPC’s entitlement to payments of principal and interest with respect to such Advance and (ii) shall collect, prior to the time such SPC receives payments with respect to such funded Advance, from each SPC the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such SPC were a Lender under Section 2.11, and each SPC that assigns all or a portion of its interests in any Advance to any financial institution pursuant to this Section 10.06(g), (i) shall keep a register, meeting the requirements of Treasury Regulation section 5f.103-1(c), of each such financial institution, specifying such financial institution’s entitlement to payments of principal and interest with respect to such Advance and (ii) shall collect, prior to the time such financial institution receives payments with respect to such funded Advance, from each such financial institution the appropriate forms, certificates and statements described in Section 2.11 (and updated as required by Section 2.11) as if such financial institution were a Lend

Appears in 1 contract

Sources: Senior Secured Credit Agreement (Interstate Hotels & Resorts Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and permitted assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, ~~any Revolving Commitment of such Lender~~ or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in each case~~ all Lenders pursuant to ~~the extent subject to such participation~~Section 9. 1. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 9.7(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.16 with respect to ~~its participation in the Revolving Commitments and~~ the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. ~~For~~ A Participant that would be a Non-U.S. Lender if it were a Lender shall not be entitled to the ~~avoidance~~ benefits of ~~doubt, no Loan Party shall be required to pay any greater amount pursuant to~~ Section ~~2.18 as a result~~ 2.15 unless the Borrower is notified of the ~~transfer of a~~ participation sold to a such Participant ~~than~~ and such ~~Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall~~Participant agrees, ~~acting solely~~ for ~~this purpose as a non-fiduciary agent~~ the benefit of the Borrower, ~~maintain~~ to comply with Section 2.15(e) as though it were a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant RegisterLender. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion~~ any affiliate, any Agent or any affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~its Loans~~ the Borrower and ~~Revolving Commitments hereunder~~ the Administrative Agent (which consents shall not be unreasonably withheld or delayed), to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit D, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower or Administrative Agent is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood and agreed that such Assignee~~other than to any Lender or any affiliate, ~~if it~~ any Agent or any affiliate, Related Fund or Control Investment Affiliate thereof) shall ~~not~~ be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~shall deliver to~~ in each case, unless otherwise agreed by the Borrower and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or~~ Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Section 2.14, 2.15 and 9.5 in respect of the period prior to such effective date). For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment of, and the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such ~~Assignee~~Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an a duly completed Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ▇▇▇▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Loan assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Loan upon request, a new Note to the order of the Assignor in an amount equal to the Loan retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Notes, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each ~~Borrower~~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 Lender). In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees (which agreement shall survive the ~~Administrative Agent each hereby confirms~~ termination of this Agreement) that, prior to the date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of ~~the latest maturing~~ all outstanding commercial paper ~~note issued by~~ or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such ~~Conduit Lender; provided~~SPC any bankruptcy, ~~however~~reorganization, ~~that each Lender designating~~ arrangement, insolvency or liquidation proceedings under the laws of the United States or any ~~Conduit Lender hereby agrees~~ state thereof. In addition, notwithstanding anything to ~~indemnify~~the contrary in this Section 9.6(g), ~~save~~ any SPC may (A) with notice to, but without the prior written consent of, the Borrower and ~~hold harmless each other party hereto for~~ the Administrative Agent and without paying any ~~loss~~processing fee therefor, ~~cost, damage~~ assign all or ~~expense arising out~~ a portion of its ~~inability~~ interests in any Loans to ~~institute~~ the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a ~~proceeding against~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such ~~Conduit~~ SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan is held by any SPC, such SPC and the Granting Lender ~~during~~ that would otherwise have been obligated to make such ~~period~~ Loan shall agree between themselves as to which of ~~forbearance~~them shall be entitled to grant or withhold any consent applicable to such Loan, and the other parties to the Loan Documents shall be entitled to rely conclusively on the advice of such Granting Lender as to which of such Granting Lender or such SPC is entitled to grant or withhold such consent. This paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Inergy Holdings, L.P.)

Successors and Assigns; Participations and Assignments. (a) ~~This~~ Subject to the provisions of this Section 9.6, this Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Originators, the ~~Lenders~~Servicer, the Purchasers, the Lead Arranger, the Administrative Agent, all future holders of the ~~Loans~~ Purchased Interests and their respective successors and assigns, except that no ~~Borrower~~ Originator or the Servicer (in its capacity as such) may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Purchaser. (b) Any ~~Lender other than any Conduit Lender~~ Purchaser may, without the consent of ~~any other party to this Agreement~~the Servicer, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any ~~Loan~~ Purchased Interest owing to such ~~Lender~~Purchaser, any ~~Revolving Commitment~~ Purchaser’s Investment Limits of such ~~Lender~~ Purchaser or any other interest of such ~~Lender hereunder~~Purchaser hereunder and under the other Transaction Documents. In the event of any such sale by a ~~Lender~~ Purchaser of a participating interest to a Participant, such ~~Lender~~Purchaser’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such ~~Lender~~ Purchaser shall remain solely responsible for the performance thereof, such ~~Lender~~ Purchaser shall remain the holder of any such ~~Loan~~ Purchased Interest for all purposes under this ~~Agreement~~Agreement and the other Transaction Documents, and the ~~Borrowers~~ Servicer and the Administrative Agent shall continue to deal solely and directly with such ~~Lender~~ Purchaser in connection with such ~~Lender~~Purchaser’s rights and obligations under this ~~Agreement~~Agreement and the other Transaction Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Transaction Document, or any consent to any departure by any ~~Borrower~~ Originator therefrom, except to the extent that such amendment, waiver or consent would reduce the principal ~~of, or interest on,~~ of the ~~Loans~~ Purchased Interests or any fees payable hereunder, or postpone the ~~date~~ Scheduled Due Date of the ~~final maturity of the Loans~~Purchased Interests, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees The Originators agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.7, ~~2.18~~ 2.8 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.9 with respect to its participation in the ~~Revolving Commitments~~ Purchaser’s Investment Limits and the ~~Loans~~ Purchased Interests outstanding from time to time as if it was a ~~Lender~~Purchaser; provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further,~~ that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor ~~Lender~~ Purchaser would have been entitled to receive in respect of the amount of the participation transferred by such transferor ~~Lender~~ Purchaser to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any ~~Lender other than any Conduit Lender~~ Purchaser (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Purchaser or ~~a portion~~ any Purchaser Affiliate or, with the prior written consent of ~~its Loans~~ the Servicer and ~~Revolving Commitments hereunder~~ the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Transaction Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureRegister. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a ~~Lender~~ Purchaser hereunder with a ~~Revolving Commitment~~ Purchaser’s Investment Limits and/or ~~Loans~~ Investment as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Section 2.7, 2.8, 2.9 and 9.5 for the period of time it was a Purchaser hereunder); provided that no Assignee shall be entitled to receive any greater amount pursuant to Section 2.7, 2.8 or 2.9 than the Assignor would have been entitled to receive in respect of the portion of the rights and obligations assigned by such Assignor to such Assignee had no such assignment occurred. Notwithstanding ~~the foregoing~~any provision of this Section 9.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Servicer shall not be required for any ~~Borrower or~~ assignment that occurs when a Termination Event shall have occurred and be continuing (although in such event, the ~~Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth~~ proviso in the ~~first~~ immediately preceding sentence ~~of this Section 10.6(c~~shall continue in full force and effect). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Servicer, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the ~~Lenders~~ Purchasers and the ~~Revolving Commitment~~ Purchaser’s Investment Limit of, and the ~~principal~~ amount ~~(and stated interest)~~ of the ~~Loans~~ Purchased Interests owing to, each ~~Lender~~ Purchaser from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Servicer, each Originator, the Administrative Agent and the ~~Lenders~~ Purchasers shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Purchased Interests recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan, whether or not evidenced by a Note~~Purchased Interest, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on the relevant Register only~~ available for inspection by any Purchaser or Originator at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000 (which shall be the sole responsibility of the Assignor or Assignee, as the case may be), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a ~~Lender~~ Purchaser to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Revolving Trade Receivables Purchase Agreement (Powerwave Technologies Inc)

Successors and Assigns; Participations and Assignments. Lender may (~~a) This Agreement~~ and shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23. (b) Any Lender other than any Conduit Lender mayto, without the consent of ~~any other party to this Agreement~~Borrower, ~~in accordance with applicable law~~Sole Member, ~~at any time sell to one~~ or more Eligible Assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this AgreementGuarantor, or any ~~consent to any departure by any Borrower therefrom~~direct or indirect member thereof), ~~except to the extent that such amendment~~sell, ~~waiver or consent would reduce the principal of~~transfer, ~~or interest on~~pledge, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose and/or encumber all or any portion of the ~~Participant Register to any Person (including~~ Loan and the ~~identity of any Participant~~ Loan Documents and its rights and obligations thereunder and/or grant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit issue participations or other ~~obligation is in registered form under Section 5f.103-1(c)~~ direct or indirect interests therein. Upon an assignment of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubta Note, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee assignee thereunder shall be a party hereto and, to the extent ~~provided in such Assignment~~ that rights and ~~Assumption~~obligations hereunder have been assigned to it, have the rights and obligations of ~~a Lender~~ ▇▇▇▇▇▇, as the case may be, hereunder ~~with a Revolving Commitment and/or Loans as set forth therein~~and such assignee shall be deemed to have assumed such rights and obligations, and ~~(y)~~ the ~~Assignor thereunder~~ assignor shall, to the extent ~~provided in~~ that rights and obligations hereunder have been assigned by it, relinquish such ~~Assignment~~ rights and ~~Assumption,~~ be released from ~~its~~ such obligations under this Agreement and the other Loan Documents (and, in the case of an ~~Assignment and Assumption~~ assignment covering all or the remaining portion of ~~an Assignor~~a Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents, such ~~Assignor~~ Lender shall cease to be a party hereto~~). Notwithstanding~~ ) accruing from and after the ~~foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all~~ effective date of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth~~ assignment. Borrower shall cooperate with Lender in connection with any transfer of interests in the ~~first sentence of this Section 10.6(c). (d) The Administrative Agent shall~~Loan or loan restructuring, ~~on behalf of the Borrowers~~including, ~~maintain at its address referred to in Section 10.2 a copy of each Assignment~~ without limitation, executing and ~~Assumption delivered to it~~ delivering documents and ~~a register (each~~instruments, ~~a “Register”) for the recordation of the names~~ doing such other acts and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing providing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicableinformation, in each case ~~unless~~ that are necessary to facilitate the ~~Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no~~ consummation of such ~~consent of the Parent Borrower shall be required if an Event of Default under Section 8(a)~~ transfer or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of securityrestructuring, including ~~any pledge or assignment by a~~ executing and delivering such documents and agreements (and deliver such opinions of counsel with respect thereto as Lender may require) necessary to ~~any Federal Reserve Bank in accordance with applicable law; provided that~~ accomplish the ~~foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~foregoing. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Loan Agreement (Arcimoto Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative~~ Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agent and each ~~Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower~~ Lender. Nothing expressed or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectivelyimplied herein is intended to give, or ~~pursuant~~ shall be construed to ~~Section 2.23~~give, any Person, other than the parties hereto and their permitted successors and assigns hereunder, any benefit or legal or equitable right, remedy or claim under or by virtue of this Agreement or under or by virtue of any provision herein. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents; provided that no such participation to a Participant shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of a participation of all of a Lender's interests under this Agreement), unless otherw`ise agreed by the Borrower and the Agent. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative~~ Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of ~~setoff~~ set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such ~~transfer~~ participation occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower, and the Agent (which, in each case, shall not to be unreasonably withheld or delayed, ) (provided that no such consent need be obtained in the case of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an~~ any assignment made when any Event of Default ~~under Section 8(a) or 8(b~~shall have occurred and be continuing), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee, such Assignor and ~~any other Person whose~~ the Agent (and, where the consent of the Borrower is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower) and delivered to the ~~Administrative~~ Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $8,000,000 (or, in the case of any Tranche C Term Loan, $5,000,000) other than in the case of an assignment of all of a Lender's interests under this Agreement, unless otherwise agreed by the Borrower and ~~agreed that~~ the Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The ~~Administrative~~ Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the ~~Administrative~~ Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing ~~the Loans~~ such Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated ~~Assignee, if requested~~ Assignee and the old Notes shall be returned by ~~such Assignee~~the Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person under common management with such Lender, by the Borrower, the Agent and ~~any other Person whose consent is required by Section 10.6(c),~~ the Issuing Lender) together with payment to the ~~Administrative~~ Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the ~~Administrative~~ Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Agent (in exchange for the Revolving Credit Note and/or Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Friendly Ice Cream Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the ~~Administrative Agent~~Agents, the Issuing Lenders, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents, each Issuing Lender and each Lender (~~except for any assignment by~~ provided that a ~~Canadian Borrower, a Spanish~~ Borrower may merge or ~~a Swedish~~ consolidate with another Borrower ~~as permitted by~~ in accordance with Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.237.04). (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of of, or notice to, any ~~other party to this Agreement~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than the Company or any of its controlled Affiliates) (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the Borrowers and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to enforce this agreement or to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of~~consent of all Lenders, all affected Lenders or ~~interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case~~ all affected Lenders under a particular Facility pursuant to ~~the extent subject to such participation~~Section 10.01. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 10.07 (a) as fully as if such ~~Participant~~Participant were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each ~~Participant~~ participant and the principal amounts (and ~~stated interest~~interest thereon) of each ~~Participant~~participant’s interest in the Loans or other ~~obligations~~ Obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and ~~such Lender~~ the Borrowers, the Lenders and each Agent shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to one or ~~a portion of its Loans and Revolving Commitments hereunder to an~~ more Eligible ~~Assignee~~ Assignees (an “Assignee”) all or any part of its rights and obligations under this Agreement, with the ~~consent~~written consent of the Administrative Agent, the Company and, in the case of any assignment of Revolving Credit Commitments, each Issuing Lender (in each case which shall not be unreasonably withheld, delayed or conditioned and, in the case of the Company, shall be deemed given if such consent is not received or expressly declined in writing within five Business Days after request (in accordance with Section 10.02) therefor) pursuant to an Assignment and Acceptance, substantially in the form of Exhibit D or any other form approved by the Administrative Agent (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the Company, the Administrative Agent or the Issuing Lender is required pursuant to the foregoing provisions, by the Company and such other Persons) and delivered to the Administrative Agent (A) via an electronic settlement system satisfactory to the Administrative Agent or (B) if previously agreed by the Administrative Agent, manually, for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any Affiliate or Related Fund thereof) shall be in an aggregate principal amount (determined as of the date of the relevant Assignment and Acceptance or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Company and the Administrative Agent (each such consent not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~)~~, or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that~~ . Any such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such Assignee, if it shall assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Section 2.17, 2.18 and 10.05 in respect of the period prior to such effective date). Notwithstanding any provision of this Section 10.06 to the ~~foregoing~~contrary, (I) the consent of the Company shall not be required for any ~~Conduit~~ assignment (x) in the case of any assignment of Term Loans, to another Lender, an Affiliate of a Lender ~~may assign~~ or a Related Fund of a Lender and, in the case of any assignment of Revolving Credit Commitments, to another Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or a Related Fund of a Revolving Credit Lender, (y) that occurs at any time when any Event of Default shall have occurred and be continuing or (z) during the primary syndication of the Loans and the Commitments to ~~its designating Lender hereunder without~~ Persons identified in writing to the Company as syndication targets prior to the Closing Date and (II) the consent of ~~any Borrower or~~ the Administrative Agent shall not be required for any assignment of Term Loans to another Lender, an Affiliate of a Lender or ~~all~~ a Related Fund of a Lender. For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in ~~the first sentence of~~ this ~~Section 10.6(c)~~paragraph, multiple assignments by two or more Related Funds shall be aggregated. (d) By executing and delivering an Assignment and Acceptance, the assigning Lender thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that its Term Loan Commitment and Revolving Credit Commitment, and the outstanding balances of its Term Loans and Revolving Credit Loans, in each case without giving effect to assignments thereof which have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set forth in (i) above or otherwise agreed in writing between such assigning Lender and such assignee, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Company or any Subsidiary or the performance or observance by the Company or any Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (iii) such assignee represents and warrants that it is an Eligible Assignee legally authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has received a copy of this Agreement, together with copies of the most recent financial statements referred to in Section 4.01 or delivered pursuant to Section 6.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (e) The Administrative ~~Agent shall~~Agent, ~~on behalf~~ acting for this purpose as agent of the Borrowers, shall maintain at one of its ~~address referred to~~ addresses in ~~Section 10.2~~ the City of New York a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the Borrowers, ~~the Administrative~~ each Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon, ~~and thereupon~~ if requested by the Assignee, one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee.~~ the Administrative Agent to the Company marked “canceled”. The Register shall be available for inspection by the Borrowers or any Lender (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to any entry relating to such ~~assignment is delivered~~ Lender’s Loans) at any reasonable time and from time to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if anytime upon reasonable prior notice. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~10.06(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent), an Administrative Questionnaire completed in respect of the assignee (unless the assignee shall already be a Lender hereunder) and any applicable tax forms, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant Register on~~ Register. Each Borrower, at its own expense, promptly upon request, shall execute and deliver to the ~~effective date determined~~ Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (g) Any Lender or participant may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 10.06, disclose to the assignee or participant or proposed assignee or participant any information relating to the Company furnished to such Lender by or on behalf of the Company, including notification of the inclusion of, if applicable, material non-public information regarding the Company and/or its Subsidiaries; provided that, prior to any such disclosure of information designated by the Borrower as confidential, each such assignee or participant or proposed assignee or participant shall execute an agreement, of which the Company is a third-party beneficiary, whereby such assignee or participant shall agree to preserve the confidentiality of such confidential information on terms no less restrictive than those applicable to the Lenders pursuant to Section 10.15. (h) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Notes, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law; provided that ~~the foreclosure on~~ no such assignment shall release a Lender from any of its obligations hereunder or substitute any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any assignee for such Lender ~~requiring Notes to facilitate transactions of the type described in paragraph (g) above~~as a party hereto. (i) ~~Each Borrower~~Notwithstanding anything to the contrary contained herein, ~~each~~ any Lender ~~and~~ (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent ~~each hereby confirms~~ and the Company, the option to provide to the Borrowers all or any part of any Loan that ~~it will~~ such Granting Lender would otherwise be obligated to make to the Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not ~~institute against~~ to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued Loan by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.an SPC hereunder shall uti

Appears in 1 contract

Sources: Credit Agreement (Verint Systems Inc)

Successors and Assigns; Participations and Assignments. ~~(a)~~ This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (ba) Any ~~Lender other than any Conduit~~ Lender may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (cb) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower, the Issuing Lender (in the case of assignments of Revolving Credit Commitments only) and the Agents (which, in each case, shall not to be unreasonably withheld or 79 80 delayed, ) (provided (x) that no such consent of the Borrower or any Agent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 180 days following the Closing Date and (ay) the ~~Parent Borrower, unless (i)~~ consent of the ~~Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (~~Borrower need not be obtained with respect to ~~a Borrower~~any assignment of funded Term Loans), ~~has occurred~~ to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit G, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower, the Agents or the Issuing Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 and result in the Assignor having aggregate Commitments of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), in each case unless otherwise agreed ~~that~~ by the Borrower, the Syndication Agent and the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (dc) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the Borrower marked "canceled". The Register shall be available for inspection by the Borrower or any Lender (with respect to entries relating to such ~~Assignee~~Lender's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (fd) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a Lehm▇▇ ▇▇▇ity or (z) in the case 80 81 of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Note, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Note, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (ge) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Salton Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no (i) the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (cii) ~~below, respectively,~~ any attempted assignment or ~~pursuant to Section 2.23~~transfer by the Borrower without such consent shall be null and void. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~the Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a “Participant”) participating interests in any Loan owing to such Lender, ~~any Revolving~~ the Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in 80 connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ described in clause (w) of the ~~final maturity of the Loans~~proviso to Section 8.1 that affects such Participant, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 8.7 as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 (and subject to the ~~requirements and~~ limitations ~~therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)~~thereof) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of ~~said~~ Section 2.14 (including the requirements under Sections 2.14(e), 2.14(f) and 2.14(g) (it being understood that the documentation required under Sections 2.14(e), 2.14(f) and 2.14(g) shall be delivered to the participating Lender)) as if it ~~were~~ was a ~~Lender~~ Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to ~~any such Section~~ Sections 2.12, 2.13 or 2.14 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent such entitlement to ~~pay any~~ receive a greater ~~amount pursuant~~ payment results from a Change in Law made subsequent to ~~Section 2.18 as a result of~~ the ~~transfer of a participation to a~~ Original Closing Date that occurs after the Participant ~~than such Loan Party would have been required to pay absent such transfer~~acquired the applicable participation. Each Lender that sells a participation shall, acting ~~solely for this purpose~~ as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~commitments, loans, letters of credit~~ Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such ~~commitment~~Commitment, ~~loan, letter of credit~~ or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income TaxRegulations. The entries in the Participant Register shall be ~~conclusive absent~~ conclusive, in the absence of manifest error, and such ~~Lender~~ Lender, each Loan Party and the Administrative Agent shall treat each ~~Person~~ person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Person (other than the Borrower or ~~a portion~~ any of its ~~Loans and Revolving Commitments hereunder to~~ Affiliates or an ~~Eligible Assignee~~ Ineligible Institution) (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided ~~that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without~~ that (i) the consent of the ~~Parent Borrower~~Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and in the case of the Borrower shall be deemed to ~~make~~ have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this ~~Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ Agreement. For purposes of the ~~date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower~~ proviso contained in the ~~foreseeable future~~preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any~~ the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~8.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 8.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan~~Loan or Commitment, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Commitment evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such ~~Loan~~Loan or Commitment, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~8.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000 (such fee not payable with respect to assignments to an Assignor’s Affiliate and such fee not to be payable by the Borrower, except for an assignment pursuant to Section 2.18), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) ~~For avoidance~~ Any Lender may at any time pledge or assign a security interest in all or any portion of ~~doubt the parties to~~ its rights under this Agreement ~~acknowledge that the provisions~~ to secure obligations of ~~this Section 10.6 concerning assignments relate only to absolute assignments and that~~ such ~~provisions do not prohibit the granting of security~~Lender, including any pledge or assignment by to secure obligations to a ~~Lender to any~~ Federal Reserve ~~Bank in accordance with applicable law~~Bank; provided that ~~the foreclosure on~~ no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant ~~Lender~~▇▇▇▇▇▇, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (ih) Each of the Borrower, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Revolving Credit Agreement (Bunge Global SA)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.17 with respect to its 77 72 participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time, subject to the consent of the Syndication Agent, assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower and the Agents (which, in each case, shall not to be unreasonably withheld or delayed~~, of~~ ) (~~a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~provided that no such consent need be obtained for assignments involving Lehm▇▇ ▇▇▇mercial Paper Inc.), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee, such ~~Assignor~~ Assignor, the Syndication Agent and ~~any other Person whose~~ the Administrative Agent (and, where the consent of the Borrower is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower, the Syndication Agent and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 8(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing ~~the Loans~~ such Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated ~~Assignee, if requested~~ Assignee and the old Notes shall be returned by ~~such Assignee~~the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor~~assigning Lender, an Assignee and ~~any other~~ the Syndication Agent (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person ~~whose consent is required~~ under common management with such Lender, by ~~Section 10.6(c)~~the Borrower, the Administrative Agent and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc.), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Imperial Holly Corp)

Successors and Assigns; Participations and Assignments. ~~(a)~~ This Agreement shall be binding upon and inure to the benefit of Holdings, the Borrowers, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23. (b) Lender. Any ~~Lender other than any Conduit~~ Lender may, without the consent of any ~~other party to this Agreement~~of the Borrowers or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the Borrowers and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower agrees~~ The Borrowers agree that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender hereunder. The Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also ~~agrees~~ agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any ~~Lender other than any Conduit~~ Lender (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, any affiliate of any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Approved Fund or, with the ~~consent~~consent of the Borrowers and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ except in the case of an assignment of all of a Lender's interests under this Agreement, no such assignment to ~~the contrary in this Agreement~~ an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund) shall (i) be in an aggregate principal amount of less than $5,000,000 or (ii) cause the 144 65 Assignor to have Aggregate Exposure of less than $3,000,000, in each case unless otherwise agreed by the Borrowers and the Administrative Agent. For purposes of clauses (i) and (ii) of the ~~Loan Documents~~preceding sentence, ~~no Lender~~ the amounts described therein shall be ~~entitled~~aggregated in respect of each Lender and its related Approved Funds, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if any. Any such assignment ~~would increase~~ need not be ratable as among the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 9.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Borrowers shall not be required for any ~~Borrower~~ assignment that occurs when an Event of Default pursuant to Section 7(a) or 7(f) shall have occurred and be continuing. On the effective date of any Assignment and Acceptance, the Administrative Agent ~~any or all~~ shall give notice of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard~~ terms thereof to the ~~limitations set forth in the first sentence of this Section 10.6(c). (d)~~ Syndication Agents. The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the Borrowers, each other Loan Party, the ~~Administrative Agent~~ Agents and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee. (e) Except in the case of an assignment to~~ . The Administrative Agent will promptly send a ~~Lender, a Lender Affiliate or a Conduit Lender or an assignment~~ copy of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered Register to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Borrowers upon request. Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. ; provided, however, that no such fee shall be payable in the case of an assignment by a Lender to any of its Affiliates or to an Approved Fund of such Lender; and provided further that, in the case of assignments on the same day by a Lender to more than one fund managed by the same investment advisor (g) which funds are not then Lenders hereunder), only a single $3,500 fee shall be payable for all such assignments by such Lender to such funds. For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan to any Federal Reserve Bank in accordance with applicable law. Adjustments; ~~provided~~ Set-off. Except to the extent that this Agreement expressly provides for payments to be allocated to a particular Lender or to the ~~foreclosure on~~ Lenders under a particular Facility, if any Lender (a "Benefitted Lender") shall receive any payment of all or part of the amounts owing to it hereunder, or receive any collateral in 145 66 respect thereof (whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred to in Section 7(f), or otherwise), in a greater proportion than any such ~~pledged Loan~~ payment to or collateral received by any other Lender, if any, in respect of the amounts owing to such other Lender hereunder, such Benefitted Lender shall purchase for cash from the other Lenders a participating interest in such portion of the amounts owing to each such other Lender hereunder, or shall provide such other Lenders with the benefits of any such collateral, as shall be ~~subject~~ necessary to cause such Benefitted Lender to share the ~~provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt~~ excess payment or benefits of ~~written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions~~ such collateral ratably with each of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit LenderLenders; provided, however, that if all or any portion of such excess payment or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such recovery, but without interest. In addition to any rights and remedies of the Lenders provided by law, each Lender ~~designating~~ shall have the right, without prior notice to Holdings or any ~~Conduit Lender hereby agrees~~ of the Borrowers, any such notice being expressly waived by Holdings and the Borrowers to ~~indemnify~~the extent permitted by applicable law, ~~save~~ upon any amount becoming due and ~~hold harmless each other party hereto for~~ payable by Holdings or any ~~loss~~of the Borrowers hereunder (whether at the stated maturity, ~~cost~~by acceleration or otherwise), ~~damage or expense arising out of its inability~~ to ~~institute such a proceeding~~ set off and appropriate and apply against such ~~Conduit~~ amount any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by such Lender ~~during~~ or any branch or agency thereof to or for the credit or the account of Holdings or the Borrowers, as the case may be. Each Lender agrees promptly to notify the Borrowers and the Administrative Agent after any such ~~period~~ setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of ~~forbearance~~such setoff and application.

Appears in 1 contract

Sources: Credit Agreement (Charter Communications Inc /Mo/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the DIP Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no ~~Borrower~~ Obligor may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~each Lender~~ the Administrative Agent (~~except for~~ and any purported such assignment or transfer by ~~a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3)~~ any Obligor without such consent shall be null and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23void). (b) Any ~~Lender other than any Conduit~~ DIP Lender may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities, other than a natural person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (~~each, a~~ “Participant”) participating interests in any DIP Loan owing to such DIP Lender, any ~~Revolving~~ Commitment of such DIP Lender or any other interest of such DIP Lender ~~hereunder~~hereunder and under the other DIP Loan Documents. In the event of any such sale by a DIP Lender of a participating interest to a Participant, such DIP Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such DIP Lender shall remain solely responsible for the performance thereof, such DIP Lender shall remain the holder of any such DIP Loan for all purposes under this ~~Agreement~~Agreement (other than Sections 3.6 and 3.7) and the other DIP Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such DIP Lender in connection with such DIP Lender’s rights and obligations under this ~~Agreement~~Agreement and the other DIP Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment to or waiver of any provision of ~~this Agreement~~any DIP Loan Document (including without limitation wavers relating to Defaults or Events of Default), or any consent to any departure by any ~~Borrower~~ Obligor therefrom, except to the extent that such amendment, waiver or consent would increase any DIP Loan Commitment in which it is participating, reduce the principal of, or the stated rate of interest on, the DIP Loans or any fees payable hereunder, or postpone the date of the final maturity or any scheduled amortization of the DIP Loans, or release all or substantially all of the DIP Collateral under the Security Documents or substantially reduce the amount of the guarantee in Section 10 of this Agreement, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it such Participant as a DIP Lender under this Agreement, ; provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ DIP Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 11.7(a) as fully as if such ~~Participant~~Participant were a DIP Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of of, and bound by the obligations imposed on the DIP Lenders in, Sections ~~2.17, 2.18~~ 3.6 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 3.7 with respect to its participation in the ~~Revolving~~ Commitments and the DIP Loans outstanding from time to time as if it ~~was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it~~ were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant RegisterDIP Lender. (c) Any DIP Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any DIP Lender or any Affiliate or Approved Fund thereof or, with the consent of the Required DIP Lenders (other than a ~~portion of its Loans and Revolving Commitments hereunder~~ Defaulting DIP Lender) (which shall not be unreasonably withheld), to an Eligible Assignee ~~(an “Assignee”) with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other DIP Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit D, appropriately completed (an “Assignment and Acceptance”), executed by such Eligible Assignee, such ~~Assignor~~ assigning DIP Lender (and, in the case of an Eligible Assignee that is not then a DIP Lender or an Affiliate thereof, by the Administrative Agent), and ~~any other Person whose consent is required pursuant to this paragraph~~attaching the Eligible Assignee’s relevant administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ no such assignment to an Eligible Assignee (other than any DIP Lender or any Affiliate or Approved Fund of a DIP Lender) shall be in an aggregate principal amount of less than $500,000 (other than in the ~~contrary in~~ case of (a) an assignment of all of a DIP Lender’s interests under this Agreement or ~~any~~ (b) an assignment to an Affiliate or Approved Fund of the ~~Loan Documents~~assignor or another DIP Lender), ~~no Lender shall~~ unless otherwise agreed by the Administrative Agent (such amount to be ~~entitled, without the consent~~ aggregated in respect of ~~the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement~~ assignments by to any ~~Borrower, including without limitation under Section 2.17~~ DIP Lender and the Affiliates or ~~2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~Approved Funds thereof). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (xA) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a DIP Lender hereunder with ~~a Revolving Commitment and/or Loans~~ Commitments as set forth therein, and (yB) the ~~Assignor~~ assigning DIP Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor~~assigning DIP Lender’s rights and obligations under this Agreement, such ~~Assignor~~ assigning DIP Lender shall cease to be a party hereto, except as to Sections 3.6, 3.7 and 11.5 in respect of the period prior to such effective date). ~~Notwithstanding the foregoing, any Conduit~~ Any assignment or transfer by a DIP Lender ~~may assign at any time to its designating~~ of rights or obligations under this Agreement that does not comply with this Section 11.6(c) shall be treated for purposes of this Agreement as a sale by such DIP Lender ~~hereunder without the consent~~ of ~~any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder~~ a participation in such rights and ~~pursuant to its designation agreement and without regard to the limitations set forth~~ obligations in ~~the first sentence~~ accordance with clause (b) of this Section ~~10.6(c)~~11.6. (d) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the DIP Lenders and the ~~Revolving Commitment~~ DIP Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the DIP Loans owing to, each DIP Lender from time to time. Failure to make any such recordation, or any error in such recordation shall not affect the Borrower’s obligations in respect of such rights. If a DIP Lender sells a participation in its rights hereunder, it shall maintain a register as agent of the Borrower, which shall contain the information described in this paragraph and beginning with the time that such Participant wishes to exercise direct rights against the Borrower, the DIP Lender shall, at the Borrower’s request, disclose to the Borrower the information the DIP Lender has maintained pursuant to this Section 11.6(d) with respect to that Participant. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the DIP Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of a DIP Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other DIP Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan~~DIP Loan or other obligation hereunder, whether or not evidenced by a DIP Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any DIP Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor~~assigning DIP Lender and an Eligible Assignee (and, in the case of an Eligible Assignee ~~and any other Person whose consent~~ that is ~~required~~ not then a DIP Lender or an Affiliate or Approved Fund thereof, by ~~Section 10.6(c~~the Administrative Agent), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 payable by the assigning DIP Lender, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the DIP Lenders and the Borrower. (f) The Borrower authorizes each DIP Lender to disclose to any Participant or Eligible Assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such DIP Lender’s possession concerning the Borrower and its Affiliates which has been delivered to such DIP Lender by or on behalf of the ~~effective date determined~~ Borrower pursuant ~~thereto~~to this Agreement or which has been delivered to such DIP Lender by or on behalf of the Borrower in connection with such DIP Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement; provided that, such Transferee shall have agreed to be bound by the provisions of Section 11.15 hereof. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 11.6 concerning assignments of DIP Loans and DIP Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, (i) any pledge or assignment by a DIP Lender of any DIP Loan or DIP Note to any Federal Reserve Bank in accordance with applicable ~~law~~law and (ii) any pledge or assignment by a DIP Lender which is a fund to its trustee for the benefit of such trustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party, or to a DIP Lender to or other holder of obligations of such DIP Lender; provided ~~that the foreclosure on~~ that, no such pledge or assignment of a security interest shall release a DIP Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such DIP Lender as a party hereto. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Debtor in Possession Credit Agreement (Verasun Energy Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount all Lenders pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register9. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Magellan Midstream Partners Lp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided 71 66 that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.20 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, any affiliate thereof or ~~a portion of its Loans and Revolving Commitments hereunder to~~ an ~~Eligible Assignee (an “Assignee”)~~ Approved Fund with respect thereto or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender, any affiliate thereof or an Approved Fund with respect thereto) shall be in an aggregate principal amount of less than $5,000,000 (or, in the case of the Term Loans, $1,000,000), in each case other than in the case of an assignment of all of a Lender's interests under this Agreement, unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, provided that such Assignor shall continue to be entitled to the benefits of the indemnity provisions hereunder for the period prior to the assignment). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Borrower shall not be required for any ~~Borrower or the Administrative Agent any or all~~ assignment that occurs when an Event of ~~the Loans it may have funded hereunder and~~ Default pursuant to ~~its designation agreement~~ Section 8(f) shall have occurred and ~~without regard~~ be continuing with respect to the ~~limitations set forth in the first sentence of this Section 10.6(c)~~Borrower. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto; provided, however, that no such fee shall be payable in the case of an assignment by a Lender to an affiliate of such Lender or an Approved Fund with 72 67 respect to such Lender; and provided, further, that, in the case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (which funds are not then Lenders hereunder), only a single such fee shall be payable for all such contemporaneous assignments. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Rent a Center Inc De)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Guarantor, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its commercial banking business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any ~~such~~ Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees The Borrowers agree that if amounts outstanding under this Agreement ~~and the Loans~~ or any Note are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement or any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant~~Participant shall be deemed to have agreed to, on share with the ~~one hand, nor~~ Lenders the proceeds thereof as provided in subsection 11.7(a) as fully as if it were a Lender hereunder. The Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also ~~agrees~~ agree that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 3.5, ~~2.18~~ 3.6 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 3.7 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding ~~from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section~~ as if it were a ~~Lender~~ Lender; and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its commercial banking business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any 44 186 Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of ~~(a)~~ the ~~Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred~~ Company and ~~is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from~~ the Administrative Agent ~~for such consent,~~ (~~b) the Administrative Agent, and (c) each Issuing Lender,~~ which in each case shall not be unreasonably withheld), to an additional bank or financial institution (an "Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption,~~ Acceptance executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Company and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed that such Assignee~~Register, 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, ~~notwithstanding anything~~ in the case of any such assignment to an additional bank or financial institution, the ~~contrary in this Agreement or any~~ aggregate amount of the ~~Loan Documents~~Commitment being assigned and, ~~no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment ~~would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ is of less than all of the ~~date of such assignment or if, as~~ rights and obligations of the ~~date~~ assigning Lender, the aggregate amount of the Commitment remaining with the assigning Lender are each not less than $5,000,000 (or such ~~assignment, such assignment would increase~~ lesser amount as may be agreed to by the ~~cost under this Agreement to any Borrower in~~ Company and the ~~foreseeable future~~Administrative Agent). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or~~ and Loans outstanding as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this subsection, the ~~foregoing,~~ consent of the Company shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 9(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf~~ shall maintain at the address of the ~~Borrowers, maintain at its address~~ Administrative Agent referred to in ~~Section 10.2~~ subsection 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses and Commitments of the Lenders and the ~~Revolving Commitment of~~principal amounts of the Loans, and the principal ~~amount (~~amounts and ~~stated interest)~~ holders of the ~~Loans~~ Notes, owing ~~to,~~ by each Borrower to each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or holder of a Note or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner or holder thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or ~~not evidenced by a Note,~~ other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender and any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) ~~Except~~ Upon its receipt from an assigning Lender and an Assignee of an Assignment and Acceptance executed by an assigning Lender and an Assignee (and, in the case of an ~~assignment to~~ Assignee that is not then a ~~Lender, a Lender Affiliate or a Conduit~~ Lender or an ~~assignment of~~ affiliate thereof, by the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment Company and ~~Assumption with respect to such assignment is delivered to~~ the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$2,500, (i) the Administrative Agent shall (iA) promptly accept such Assignment and ~~Assumption~~ Acceptance and (iiB) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Company and (ii) the assigning Lender, the Administrative Agent and the 45 187 Borrowers shall make appropriate arrangements (at such assigning Lender's cost and expense) so that the Notes evidencing such assigned Loan are surrendered and new Notes are issued to the Assignee and the assigning Lender, as appropriate. (f) Each Borrower authorizes each Lender to disclose to any Participant, Assignee or Designated Lender (each, a "Transferee") and any prospective Transferee, subject to the provisions of subsection 11.17, any and all financial information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Borrower pursuant ~~thereto~~to this Agreement or, which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement, provided, that the Lenders shall take such steps as reasonably necessary to ensure that confidential information will be treated in a confidential manner as required by subsection 11.17. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 10.6~~ subsection concerning assignments of Loans relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) ~~Each Borrower~~Any Lender may at any time designate not more than one Designated Lender to fund Loans on behalf of such Designating Lender subject to the terms of this subsection 11.6(h), ~~upon receipt~~ and the provisions of ~~written notice from~~ subsections 11.6(b), (c), (d) and (e) shall not apply to such designation. No Lender may have more than one Designated Lender at any time. Such designation may occur either by the ~~relevant~~ execution of the signature pages hereof by such Lender and Designated Lender next to the appropriate "Designating Lender" and "Designated Lender" captions, ~~agrees~~ or by execution by such parties of a Designation Agreement subsequent to ~~issue Notes to~~ the date hereof; provided, that any Lender ~~requiring Notes~~ and its Designated Lender executing the signatures pages hereof as "Designating Lender" and "Designated Lender", respectively, on the date hereof shall be deemed to ~~facilitate transactions of~~ have executed a Designation Agreement, and shall be bound by the ~~type described in paragraph (g) above. (i) Each Borrower~~respective representations, warranties and covenants contained therein, and such designation shall be conclusively deemed to be accepted by the Company, the Subsidiary Borrower and the Administrative Agent. The parties to each ~~Lender~~ such designation occurring subsequent to the execution date hereof shall execute and deliver to the Company and the Administrative Agent ~~each hereby confirms~~ for their acceptance a Designation Agreement. Upon such receipt of an appropriately completed Designation Agreement executed by a Designating Lender and a designee representing that it is a Designated Lender and consented to by the Company, the Administrative Agent will ~~not institute against~~ accept such Designation Agreement and will give prompt notice thereof to the Company and the other Lenders, whereupon, (i) the Company and/or the Subsidiary Borrower, as the case may be, shall execute and deliver to the Designating Lender (at such Designated Lender's cost and expense) a ~~Conduit~~ Designated Lender ~~or join any other Person in instituting against a Conduit Lender any bankruptcy~~Note payable to the order of the Designated Lender, ~~reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year~~ (ii) from and ~~one day~~ after the ~~payment~~ effective date specified in ~~full~~ the Designation Agreement, the Designated Lender shall become a party to this Agreement with a right to make Loans on behalf of its Designating Lender pursuant to subsection 2.8 and (iii) the ~~latest maturing commercial paper note issued by~~ Designated Lender shall not be required to make payments with respect to any obligations in this Agreement except to the extent of excess cash flow of such ~~Conduit Lender~~Designated Lender which is not otherwise required to repay obligations of such Designated 46 188 Lender which are then due and payable; provided, however, that regardless of such designation and assumption by the Designated Lender, the Designating Lender shall be and remain obligated to the Company, the Subsidiary Borrower, the Administrative Agent and the Lenders for each and every of the obligations of the Designating Lender ~~designating~~ and its related Designated Lender with respect to this Agreement, including, without limitation, any ~~Conduit Lender hereby agrees~~ indemnification obligations under subsection 10.7 and any sums otherwise payable to ~~indemnify~~the Company or the Subsidiary Borrower by the Designated Lender. Each Designating Lender, ~~save and hold harmless each other party hereto for any loss~~or a specified branch or affiliate thereof, ~~cost, damage or expense arising out~~ shall serve as the administrative agent of its ~~inability~~ Designated Lender and shall on behalf of its Designated Lender: (a) receive any and all payments made for the benefit of such Designated Lender and (b) give and receive all communications and notices and take all actions hereunder, including, without limitation, votes, approvals, waivers, consents and amendments under or relating to ~~institute~~ this Agreement and the other Loan Documents. Any such notice, communication, vote, approval, waiver, consent or amendment shall be signed by a ~~proceeding against~~ Designating Lender, or specified branch or affiliate thereof, as administrative agent for its Designated Lender and need not be signed by such ~~Conduit~~ Designated Lender ~~during such period~~ on its own behalf. The Company, the Subsidiary Borrower, the Administrative Agent and the Lenders may rely thereon without any requirement that the Designated Lender sign or acknowledge the same. No Designated Lender may assign or transfer all or any portion of ~~forbearance~~its interest hereunder or under any other Loan Document, other than via an assignment to its Designating Lender or Liquidity Bank, if any, or otherwise in accordance with the provisions of this subsection 11.6.

Appears in 1 contract

Sources: Credit Agreement (Harman International Industries Inc /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"PARTICIPANTS") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ~~provided that~~PROVIDED, that in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 11.7(B) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.10 AND 4.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to ~~time~~ time, and shall be subject to the requirements of Section 4.12, as if it ~~was~~ were a Lender; ~~provided that~~PROVIDED, that in the case of Section ~~2.18~~4.10, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender and provided, further~~Section; PROVIDED FURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Person (an "ASSIGNEE") all or ~~a portion~~ any part of its ~~Loans~~ rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption,~~ Acceptance executed by such ~~Assignee,~~ Assignee and such ~~Assignor and any other Person whose consent is required pursuant to this paragraph,~~ assigning Lender and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant~~ Register (~~it being understood~~ with a copy to the Borrower); PROVIDED, (i) except in the case of an assignment of all of a Lender's interests under this Agreement and ~~agreed that~~ the Notes, no such ~~Assignee, if it~~ assignment (other than to any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 and (ii) each such assignment shall be subject to the prior written consent of the Borrower and the Administrative Agent (which consent in each case shall not be ~~a Lender~~unreasonably withheld or delayed), 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, except that no ~~Lender shall be entitled, without the~~ consent of the ~~Parent Borrower, to make~~ Borrower shall be required in the case of an assignment ~~under this Section 10.6(c) if such assignment would increase the cost under this Agreement~~ to any ~~Borrower, including without limitation under Section 2.17~~ other Lender or ~~2.18,~~ any affiliate thereof or an assignment consummated while an Event of Default shall have occurred and be continuing. Such assignment need not be ratable as among any Revolving Credit Commitments and/or Revolving Credit Loans of the ~~date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~assigning Lender. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “Register”~~the "REGISTER") for the recordation of the names and addresses of the Lenders and/or any nominees thereof and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents. Any assignment of any ~~Loan, whether~~ Loan or ~~not evidenced by a Note,~~ other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an ~~Assignee and any other Person whose consent is required by Section 10.6(c)~~Assignee, together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$1,500 if such Assignee is a Lender or an affiliate of a Lender, and, in all other cases, $3,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the ~~effective date determined pursuant thereto~~Lenders and the Borrower. (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement, subject to Section 11.14(E). (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 11.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable ~~law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~Requirements of Law. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Able Telcom Holding Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or funds that regularly invest in loans and/or loan participations or, with the consent of the Administrative Agent (which shall not be unreasonably withheld or delayed), any other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Note held by such Lender, any Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such ~~Loan~~ Note for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~would reduce~~ is in respect of any issues requiring the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ approval of 100% of the ~~final maturity of the Loans, in each case~~ Lenders pursuant to ~~the extent subject to such participation~~Section 11. 1. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the ~~Loans~~ Notes are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this ~~Agreement~~Agreement or any Note, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 11.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.12 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.13 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.13, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.,

Appears in 1 contract

Sources: Revolving Credit and Guarantee Agreement (Fpa Medical Management Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Issuing Bank, ~~all future holders of~~ the ~~Loans~~ Agent and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender ~~(except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3)~~ and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23the Issuing Bank. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible to the other parties for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative~~ Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other ~~hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant~~Loan Documents. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 5.9, ~~2.18~~ 5.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 5.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any affiliate thereof or, with the consent of the Agent (which shall not be unreasonably withheld), to another Person ("an Assignee") all or ~~a portion~~ any part of its ~~Loans~~ rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ------- S, executed by such Assignee, such ~~Assignor and any other Person whose consent~~ assigning Lender (and, in the case of an - Assignee that is ~~required pursuant to this paragraph~~not then a Lender or an affiliate thereof, by the Agent) and delivered to the ~~Administrative~~ Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed that such Assignee~~Register, 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, ~~notwithstanding anything~~ in the case of any such assignment to an additional Assignee, the ~~contrary in this Agreement or any~~ sum of the ~~Loan Documents, no Lender shall be entitled, without the consent~~ aggregate principal amount of the ~~Parent Borrower~~Loans and the aggregate amount of the unused Commitments being assigned and, ~~to make an assignment under this Section 10.6(c)~~ if such assignment ~~would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ is of less than all of the ~~date of such assignment or if, as~~ rights and obligations of the ~~date~~ assigning Lender, the sum of ~~such assignment, such assignment would increase~~ the ~~cost under this Agreement to any Borrower in~~ aggregate principal amount of the ~~foreseeable future~~Loans and the aggregate amount of the unused Commitments remaining with the assigning Lender are each not less than $5,000,000. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of paragraph (e) of this subsection, unless requested by the ~~foregoing~~Assignee and/or the assigning Lender, Notes shall not be required to be executed and delivered by the Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 10(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The ~~Administrative Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Agent referred to in ~~Section 10.2~~ subsection 12.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the ~~Administrative~~ Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or ~~not evidenced by a Note,~~ other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee ~~and any other Person whose consent~~ (and, in the case of an Assignee that is ~~required~~ not then a Lender or an affiliate thereof, by ~~Section 10.6(c),~~ the Agent) together with payment by the Assignee or the assigning Lender to the ~~Administrative~~ Agent of a registration and processing fee of ~~US$~~$3,500, the ~~Administrative~~ Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Borrower. (f) Subject to the provisions of subsection 12.16, the Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Borrower, its wholly owned Domestic Subsidiaries and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Borrower pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower, its wholly owned Domestic Subsidiaries and its Affiliates prior to becoming a party to this Agreement. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 10.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law; , provided that ~~the foreclosure on~~ no such assignment shall release a Lender from any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its ~~inability to institute such a proceeding against such Conduit Lender during such period of forbearance~~obligations hereunder.

Appears in 1 contract

Sources: Credit Agreement (Gencor Industries Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.15 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood and agreed that such Assignee, if it~~ other than any Lender or any affiliate thereof) shall ~~not~~ be in an aggregate principal amount of less than $2,500,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~shall deliver to~~ unless otherwise agreed by the Borrower and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Borrower shall not be required for any ~~Borrower or the Administrative Agent any or all~~ assignment that occurs when an Event of ~~the Loans it may have funded hereunder and~~ Default pursuant to ~~its designation agreement~~ Section 8(f) shall have occurred and ~~without regard~~ be continuing with respect to the ~~limitations set forth in the first sentence of this Section 10.6(c)~~Borrower. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Revolving Credit Agreement (Cinemastar Luxury Theaters Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.20 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or any Affiliate thereof or a ~~portion~~ Related Fund of ~~its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Lender or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any Affiliate thereof or a Related Fund of any Lender) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Borrower shall not be required for any ~~Borrower or the Administrative Agent any or all~~ assignment that occurs when an Event of ~~the Loans it may have funded hereunder and~~ Default pursuant to ~~its designation agreement~~ Sections 8(a), 8(c) or 8(f) shall have occurred and ~~without regard~~ be continuing with respect to the ~~limitations set forth in the first sentence of this Section 10.6(c)~~Borrower. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the ~~Administrative Agent~~ Agents and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Doane Pet Care Enterprises Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no (i) the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (cii) ~~below, respectively,~~ any attempted assignment or ~~pursuant to Section 2.23~~transfer by the Borrower without such consent shall be null and void. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~the Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a “Participant”) participating interests in any Loan owing to such Lender, ~~any Revolving~~ the Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~▇▇▇▇▇▇’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ described in clause (w) of the ~~final maturity of the Loans~~proviso to Section 8.1 that affects such Participant, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 8.7 as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 (and subject to the ~~requirements and~~ limitations ~~therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)~~thereof) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of ~~said~~ Section 2.14 (including the requirements under Sections 2.14(e), 2.14(f) and 2.14(g) (it being understood that the documentation required under Sections 2.14(e), 2.14(f) and 2.14(g) shall be delivered to the participating Lender)) as if it ~~were~~ was a ~~Lender~~ Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to ~~any such Section~~ Sections 2.12, 2.13 or 2.14 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent such entitlement to ~~pay any~~ receive a greater ~~amount pursuant~~ payment results from a Change in Law made subsequent to ~~Section 2.18 as a result of~~ the ~~transfer of a participation to a~~ Closing Date that occurs after the Participant ~~than such Loan Party would have been required to pay absent such transfer~~acquired the applicable participation. Each Lender that sells a participation shall, acting ~~solely for this purpose~~ as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~commitments, loans, letters of credit~~ Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such ~~commitment~~Commitment, ~~loan, letter of credit~~ or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income TaxRegulations. The entries in the Participant Register shall be ~~conclusive absent~~ conclusive, in the absence of manifest error, and such ~~Lender~~ Lender, each Loan Party and the Administrative Agent shall treat each ~~Person~~ person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Person (other than the Borrower or ~~a portion~~ any of its ~~Loans and Revolving Commitments hereunder to~~ Affiliates or an ~~Eligible Assignee~~ Ineligible Institution) (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided ~~that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without~~ that (i) the consent of the ~~Parent Borrower~~Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and in the case of the Borrower shall be deemed to ~~make~~ have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or 68 any Lender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this ~~Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ Agreement. For purposes of the ~~date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower~~ proviso contained in the ~~foreseeable future~~preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any~~ the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~8.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 8.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan~~Loan or Commitment, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Commitment evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such ~~Loan~~Loan or Commitment, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~8.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000 (such fee not payable with respect to assignments to an Assignor’s Affiliate and such fee not to be payable by the Borrower, except for an assignment pursuant to Section 2.18), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) ~~For avoidance~~ Any Lender may at any time pledge or assign a security interest in all or any portion of ~~doubt the parties to~~ its rights under this Agreement ~~acknowledge that the provisions~~ to secure obligations of ~~this Section 10.6 concerning assignments relate only to absolute assignments and that~~ such ~~provisions do not prohibit the granting of security~~Lender, including any pledge or assignment by to secure obligations to a ~~Lender to any~~ Federal Reserve ~~Bank in accordance with applicable law~~Bank; provided that ~~the foreclosure on~~ no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant ~~Lender~~▇▇▇▇▇▇, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (ih) Each of the Borrower, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Revolving Credit Agreement (Bunge Global SA)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.20 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an 83 78 additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the ~~foregoing~~consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the Assignor, new Notes shall not be required to be executed and delivered by the Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 8(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan or other obligation hereunder (whether or not evidenced by a Note, ) shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such AssigneeRegister. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (f) The Loans made by each Lender shall be evidenced by a Note issued by the Borrower, substantially in the form of Exhibit G-1, G-2 or G-3, as the case may be, payable to the order of such Lender. Each Lender is hereby authorized to record, on the schedule annexed to and constituting a part of the relevant Note, information regarding the relevant Loans made by such Lender, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided that the failure to make any such recordation or any error in such recordation shall not affect the Borrower's obligations hereunder or under any Note. On or prior to the effective date of an Assignment 84 79 and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Administrative Agent, in exchange for the relevant Notes, new Notes to the order of the Assignee and, if applicable, the Assignor. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. (g) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information concerning the Loan Parties and their respective affiliates which has been delivered to such Lender by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document or which has been delivered to such Lender by or on behalf any Loan Party in connection with such Lender's credit evaluation of the Loan Parties and their respective affiliates, under the condition that such Transferee or prospective Transferee shall previously have agreed to be bound by the provisions of Section 10.15. (h) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Campfire Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may~~, without the consent of any other party to this Agreement~~, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating ------------ interests in any Loan or L/C Obligation owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of 100 any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ -------- such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 11.7(a) as fully as if it were --------------- a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.11 with respect to its ------------ ---- ---- participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; provided that, in the case of Section ~~2.18~~4.10, -------- ------------ such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any -------- ------- greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in accordance with applicable law, at any time and from time to time assign to any Person (an "Assignee") all or ~~a portion~~ any part of -------- its ~~Loans~~ rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit A, executed by such ~~Assignee,~~ Assignee and such ~~Assignor~~ assigning Lender and ~~any other Person whose consent is required pursuant to this paragraph, and~~ --------- delivered to the Administrative Agent for its acceptance and recording in the ~~relevant~~ Register (~~it being understood~~ with a copy to the Borrower) and ~~agreed that such Assignee, if it shall not be a Lender, shall deliver~~ upon payment to the Administrative Agent ~~an administrative questionnaire~~ of a processing fee in ~~which~~ the ~~Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about~~ amount of $3,500 by the Parent Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable ~~laws, including Federal and state securities laws)~~Lender and/or Assignee; provided that, ~~notwithstanding anything to the contrary in this Agreement or any of the Loan Documents,~~ (i) no ~~Lender~~ such assignment -------- shall be ~~entitled~~in an amount less than $5,000,000 or a whole multiple of $100,000 in excess thereof or, if less than $5,000,000, the entire amount of such Lender's applicable Commitment; and (ii) no such assignment shall be made without the prior consent of the ~~Parent Borrower, to make an assignment under this Section 10.6(c~~Administrative Agent and the Borrower (which consent shall not be unreasonably withheld or delayed and no such consent of the Borrower shall be required if any Event of Default exists) if unless such assignment ~~would increase the cost under this Agreement~~ is to ~~any Borrower~~another Lender or an Affiliate of a Lender, ~~including without limitation under Section 2.17 or 2.18, as of the date of~~ in which event no such ~~assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~consent shall be required. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~101 Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this ~~Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this~~ Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) ~~The Administrative Agent shall~~Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the ~~Borrowers, maintain at its address referred~~ United States or any taxing authority thereof ("U.S. Taxes") ---------- in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in ~~Section 10.2 a copy of each Assignment and Assumption delivered to it and a register~~ registered form for U.S. federal income tax purposes may request the Borrower (~~each, a “Register”) for~~ through the ~~recordation of the names and addresses of the Lenders and the Revolving Commitment of~~Administrative Agent), and the ~~principal amount~~ Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and ~~stated interest~~substantially in the form of Exhibit N --------- (an "Alternative Note"). Alternative Notes may not be exchanged for ---------------- promissory notes that are not Alternative Notes. (e) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the ----------------------- beneficial owner thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8 (Certificate of Foreign Status of the U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities), together with an annual certificate stating that (i) such Alternative Noteholder or beneficial owner, as the case may be, is not a "bank" within the meaning of Section 881(c) of the ~~Loans owing to~~Code, ~~each Lender from time to time. The entries in each Register shall constitute prima facie evidence~~ is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the ~~same~~Code) of the Borrower and is not a controlled foreign corporation related to the Borrower (within the meaning of Section 864(d)(4) of the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case may be, shall promptly notify the Borrower if at any time such Alternative Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to provide such certification to the ~~absence~~ Borrower (or any other form of ~~manifest error,~~ certification adopted by the U.S. taxing authorities for such purposes). (f) An Alternative Note and the ~~Borrowers, the Administrative Agent~~ Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the ~~Lenders shall treat each Person whose name is recorded in each Register as~~ Obligation(s) evidenced thereby on the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of ~~a Loan evidenced by a Note~~ such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the ~~Note~~ Alternative Note(s) evidencing such ~~Loan~~Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed ~~Assignment and Assumption~~by) the Alternative Noteholder thereof, and thereupon one or more new ~~Notes may~~ Alternative Note(s) in the same aggregate principal amount shall be issued to the 102 designated ~~Assignee, if requested by such Assignee. (e~~Assignee(s). No assignment of an Alternative Note and the Obligation(s) ~~Except~~ evidenced thereby shall be effective unless it has been recorded in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined Register as ~~of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x)~~ provided in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under this Section ~~8(a) or 8(b~~11.6(f), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto.. --------------- (g) ~~For avoidance~~ The Administrative Agent, on behalf of ~~doubt~~ the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, ~~upon receipt~~ shall maintain at the address of ~~written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and~~ the Administrative Agent ~~each hereby confirms that it will not institute against a Conduit Lender or join any other Person~~ referred to in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.Section -------

Appears in 1 contract

Sources: Credit Agreement (Radio One Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; ~~provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and~~ provided~~, further~~, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Affiliate thereof or, with the ~~consent~~consent of the Borrower, the Agents and, with respect to Revolving Credit Loans, the Issuing Lender, which, in each case, shall not to be unreasonably withheld or delayed, ~~of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect~~ to a ~~Borrower)~~bank, ~~has occurred~~ financial institution or other entity (an "Assignee") all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose consent is required pursuant to this paragraph,~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee shall be in an aggregate principal amount of less than $2,000,000 (~~it being understood and agreed that~~ other than in the case of an assignment of all of a Lender's interests under this Agreement). Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the ~~Administrative Agent~~ Agents and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee~~the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment involving Lehman Commercial Paper Inc. or Swiss Bank Corporation or (z) ▇▇ ▇▇e case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Grand Union Co /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Parent, the Lenders, the Administrative Agent, all future holders of the ~~Loans~~ Term Loan and their respective successors and assigns, except that no neither the Parent nor the Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender ~~(except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3)~~ and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of ~~Loans~~ the Term Loan only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more Eligible Assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Term Loan Commitment or Term Loan of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by ~~any~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the ~~Loans~~ Term Loan or any fees payable hereunder, or postpone the date of the final maturity of the ~~Loans~~Term Loan, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the ~~Loans~~ Term Loan are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the ~~Borrowers~~ Borrower nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Term Loan Commitments and the ~~Loans~~ Term Loan outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the ~~Loans~~ Term Loan or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income TaxRegulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. Notwithstanding the preceding paragraph, any Participant that is a Farm Credit Lender that (i) has purchased a participation in a minimum amount of $5,000,000, (ii) has been designated as a “Voting Participant” in a notice (a “Voting Participant Notice”) sent by the relevant Lender to the Administrative Agent and (iii) receives, prior to becoming a “Voting Participant,” the consent of the Administrative Agent and the Borrower (each such consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with clause (b)) (a “Voting Participant”), shall be entitled to vote as if such Voting Participant were a Lender on all matters subject to a vote by the Lenders and the voting rights of the selling Lender shall be correspondingly reduced, on a dollar-for-dollar basis. Each Voting Participant Notice shall include, with respect to each Voting Participant, the information that would be included by a prospective Lender in an Assignment and Assumption. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule 10.6 hereto shall be a Voting Participant without delivery of a Voting Participant Notification and without the prior written consent of the Parent and the Administrative Agent. The selling Lender and the Voting Participant shall notify the Administrative Agent and the Borrower within three (3) Business Days of any termination, reduction or increase of the amount of, such participation. The Loan Parties and the Administrative Agent shall be entitled to conclusively rely on information contained in Voting Participant Notices and all other notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant that is not itself a Voting Participant. (c) Any ~~Lender other than any Conduit~~ Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its ~~Loans and Revolving Commitments~~ Term Loan Commitment or its portion of the Term Loan hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably ~~withheld or delayed~~withheld, of (a) the ~~Parent~~ Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to ~~a Borrower~~the Borrower or the Parent), has occurred and is continuing; provided that such consent shall be deemed given if the ~~Parent~~ Borrower has not responded within 15 days of a written request from the Administrative Agent for such ~~consent,~~ consent and (b) the Administrative Agent~~, and (c) each Issuing Lender~~, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the ~~Parent~~ Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to ~~any~~ the Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to ~~any~~ the Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Term Loan Commitment ~~and/or Loans~~ or Term Loan as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Term Loan Commitments of, and the principal amount (and stated interest) of the ~~Loans~~ portion of the Term Loan owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the ~~Loans~~ portion of the Term Loan and any Notes evidencing such portion of the ~~Loans~~ Term Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or ~~a Conduit Lender or~~ an assignment of the entire remaining amount of the assigning Lender’s ~~Revolving~~ Term Loan Commitments or ~~Loans within any Class~~Term Loan, the amount of the ~~Revolving Commitments~~ Term Loan Commitment or ~~Loans~~ Term Loan of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than ~~(x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$~~$5,000,000, ~~C$5,000,000 or €5,000,000, as applicable, in each case~~ unless the ~~Parent~~ Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the ~~Parent~~ Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender ~~Affiliates or Conduit Lenders~~Affiliates, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Domtar CORP)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower, the Issuing Lender (in the case of assignments of Revolving Credit Commitments only) and the Agents (which, in each case, shall not to be unreasonably withheld or delayed, ) (provided (x) that no such consent of the Borrower or any Agent need be obtained by Lehm▇▇ ▇▇▇mercial Paper Inc. for a period of 180 days following the Closing Date and (ay) the ~~Parent Borrower, unless (i)~~ consent of the ~~Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (~~Borrower need not be obtained with respect to ~~a Borrower~~any assignment of funded Term Loans), ~~has occurred~~ to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower, the Agents or the Issuing Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 and result in the Assignor having aggregate Commitments of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), in each case unless otherwise agreed ~~that~~ by the Borrower, the Syndication Agent and the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee~~the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehm▇▇ ▇▇▇mercial Paper Inc. or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Delayed Draw Term Loan Commitment and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment, Delayed Draw Term Loan Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment, Delayed Draw Term Loan Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment, Delayed Draw Term Loan Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Salton Maxim Housewares Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~no Borrower~~ the Borrowers may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender other than any Conduit Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its commercial lending or investing business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, insurance companies or other financial institutions or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender held by such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Company and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. ~~In no event~~ No Lender shall permit any Participant ~~under any such participation~~ to have ~~any~~ the right to ~~approve~~ consent to any amendment or waiver ~~of any provision~~ in respect of this ~~Agreement,~~ Agreement or any of the other Loan Documents, except that such Lender may grant such Participant the right to consent to any ~~departure by any Borrower therefrom~~amendment or waiver in respect of this Agreement or the other Loan Documents that would, ~~except to the extent that such amendment~~directly or indirectly, ~~waiver or consent would~~ (i) reduce the ~~principal of,~~ aggregate amount or ~~interest on, the Loans or any fees payable hereunder, or postpone the date of~~ extend the final maturity of any Loan, or reduce the ~~Loans, in each case~~ stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof or (ii) consent to the ~~extent subject to such participation~~assignment or transfer by the Company of any of its rights and obligations under this Agreement or any of the other Loan Documents. ~~Each Borrower~~ The Company agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant ~~shall, to the maximum extent permitted by applicable law,~~ shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this ~~Agreement~~Agreement or any Note, provided ~~that,~~ that in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~subsection 11.7(a) as fully as if it were a Lender hereunder. ~~Each Borrower~~ The Company also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 4.6, ~~2.18~~ 4.7 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.8 with respect to its participation in the ~~Revolving~~ Commitments and the Loans and Letters of Credit outstanding from time to time as if it was a Lender; provided ~~that,~~ that in the case of ~~Section 2.18~~subsection 4.7 or 4.8, such Participant shall have complied with the requirements of ~~said Section~~ such subsection as if though it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than ~~any~~ a Conduit Lender ~~(an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its commercial lending business or investing business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender (including a Conduit Lender) or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent,~~ consent of the Administrative Agent and the Company (such consents not to be unreasonably ~~withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~withheld), to an additional bank or ~~8(h~~financial or lending institution or other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, obligations under this Agreement and ~~(c) each Issuing Lender, in each case~~ any Notes pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender (including a Conduit Lender) or an affiliate thereof, by the Administrative Agent and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Company) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that (~~it being understood~~ x) (i) each such transfer (if such transfer relates to less than all of such Lenders' rights and ~~agreed~~ obligations under this Agreement and any Notes) shall be in respect of a portion of its rights and obligations under this Agreement not less than $5,000,000 if such assignment is to a bank or financial or lending institution or other entity that is not then a Lender (including a Conduit Lender) or an affiliate thereof and (ii) the rights and obligations of the assigning Lender under this Agreement after giving effect to such ~~Assignee, if it~~ assignment shall not be ~~a Lender~~less than $5,000,000, ~~shall deliver~~ in the case of clauses (i) and (ii) unless consented to by the Company and the Administrative Agent ~~an administrative questionnaire in which~~ and (y) the ~~Assignee designates one or more credit contacts to whom all syndicate-level information (which~~ Swing Line Lender may contain material non-public information about the Parent Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or not transfer any portion of the ~~Loan Documents, no Lender shall be entitled,~~ Swing Line Commitment without the consent of the ~~Parent Borrower,~~ Company (such consent not to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futurebe unreasonably withheld). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or Loans~~ Commitments as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto; provided that such assigning Lender shall continue to have the benefit of subsections 4.6, 4.7, 4.8 and 11.5(a), (b) and (c) (to the extent of rights accruing prior to the date of such assignment only) and 11.5(d). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any Borrower~~ the Company or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation ~~agreement~~ agreement, such assignment to be made pursuant to an Assignment and ~~without regard~~ Acceptance, executed by such Conduit Lender and its designating Lender and delivered to the ~~limitations set forth~~ Administrative Agent for its acceptance and recording in the ~~first sentence of this Section 10.6(c)~~Register. (d) The Administrative ~~Agent shall~~Agent, ~~on behalf of~~ acting for this purpose as agent for the ~~Borrowers~~Company, shall maintain at its address referred to in ~~Section 10.2~~ subsection 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Company, the Administrative Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any No assignment or transfer of ~~all or part of a Loan evidenced by~~ a Note and the obligation(s) evidenced thereby shall be ~~registered on~~ effective unless it has been recorded in the ~~relevant~~ Register ~~only~~ as provided in this subsection 11.6(d). The Register shall be available for inspection by the Company or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee ~~and any other Person whose consent~~ (and, in the case of an Assignee that is ~~required~~ not then a Lender or an affiliate thereof, by ~~Section 10.6(c),~~ the Administrative Agent) together with ~~payment~~ payment, by the Assignee, to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000 if the Assignee is not a Lender or affiliate of a Lender prior to the execution of the Assignment and Acceptance and $1,000 otherwise, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Company. On or prior to such effective date, the Company, at its own expense, shall execute and deliver to the Administrative Agent (in exchange for any Revolving Credit Note or Swing Line Note of the assigning Lender) a new Revolving Credit Note or Swing Line Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment or Swing Line Commitment, as the case may be, assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or Swing Line Commitment hereunder, a new Revolving Credit Note or Swing Line Note, as the case may be, to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment or Swing Line Commitment, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (f) The Company authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all information in such Lender's possession concerning the Company and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Company pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Company in connection with such Lender's credit evaluation of the Company and its Affiliates prior to becoming a party to this Agreement, under the condition such Transferee or prospective Transferee agrees to comply with the provisions of subsection 11.15. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 10.6~~ subsection concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) ~~Each Borrower~~The Company, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each ~~Borrower~~of Holdings, the Company, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (International Wire Group Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender may, without~~ may in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. ~~In no event~~ No Lender shall permit any Participant ~~under any such participation~~ to have ~~any~~ (and no participant shall have) the right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided ~~that,~~ that in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~subsection 10.7 (a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 2.16, 2.17 and 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; , provided ~~that,~~ that in the case of ~~Section 2.18~~subsection 2.17, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ subsection and ~~provided, further,~~ provided further that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in the ordinary course of its business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, affiliate or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ Approved Fund thereof or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit D, executed by such ~~Assignee,~~ Assignee and such Assignor (and, in the case of an Assignee that is not then a Lender, an affiliate or an Approved Fund thereof, by the Borrower and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register, provided, that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof or an Approved Fund) shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as between 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (xA) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (yB) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this subsection 10.6, the ~~foregoing~~consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the Assignor, Notes shall not be required to be executed and delivered by the Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 8(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan or other obligation hereunder (whether or not evidenced by a Note, ) shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower of any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor~~Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender, an ~~Assignee~~ affiliate thereof or an Approved Fund, by the Borrower and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant ~~thereto~~thereto and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, upon request the Borrower, at its own expense, shall execute and deliver to the Administrative Agent (in exchange for any Revolving Credit Note, Term Note or Swingline Note of the assigning Lender) a new Revolving Credit Note, Term Note or Swingline Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment or portion of the Term Loans assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment or portion of a Term Loan hereunder, a new Revolving Credit Note or Term Note, as the case may be, to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment or Term Loan, as the case may be, retained by it hereunder. Such new Notes shall be in the form of the Note replaced thereby. (f) The Borrower agrees that, upon request to the Administrative Agent by any Lender, the Borrower will execute and deliver to such Lender (i) a promissory note of the Borrower evidencing the Revolving Credit Loans of such Lender, substantially in the form of Exhibit F-1 (each as amended, supplemented, replaced or otherwise modified from time to time, a "Revolving Credit Note"), and/or (ii) a promissory note of the Borrower evidencing the Term Loans of such Lender, substantially in the form of Exhibit F-2 (each as amended, supplemented, replaced or otherwise modified from time to time, a "Term Note"), and/or (iii) a promissory note of the Borrower evidencing the Swingline Loans of the Swingline Lender, substantially in the form of Exhibit F-3) (as amended, supplemented, replaced or otherwise modified from time to time, the "Swingline Note"). (g) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information concerning the Loan Parties and their respective affiliates which has been delivered to such Lender by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document or which has been delivered to such Lender by or on behalf any Loan Party in connection with such Lender's credit evaluation of the Loan Parties and their respective affiliates, under the condition that such Transferee or prospective Transferee shall previously have agreed to be bound by the provisions of subsection 10.15. (h) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section~~ subsection 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law; , provided that ~~the foreclosure on~~ no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such lender as a party hereunder. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Omniamerica Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the ~~Loans~~ Term Loan Notes and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Term Loan owing to ~~such Lender, any Revolving Commitment of~~ such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any ~~such~~ Term Loan Note for all purposes under this ~~Agreement~~Agreement and the other Credit Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Credit Document, or any consent to any departure by any ~~Borrower~~ Credit Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Term Loans or any fees payable hereunder~~, or postpone the date of the final maturity of the Loans~~, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 9.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.15 with respect to its participation in the ~~Revolving Commitments and the~~ Term Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all or a portion of its Loans~~ at any time and ~~Revolving Commitments hereunder~~ from time to ~~an Eligible Assignee (an “Assignee”)~~ time assign to any Lender or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent ~~for such consent~~(which consent may be withheld in its sole discretion), to an additional bank, financial institution or other entity (ban "Assignee") ~~the Administrative Agent,~~ all or any part of its rights and ~~(c) each Issuing Lender, in each case~~ obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood and agreed that such Assignee, if it~~ other than any Lender) shall ~~not~~ be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~shall deliver to~~ unless otherwise agreed by 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving Commitment and/or Loans~~ Percentage as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the ~~Lenders and~~ Lenders, the ~~Revolving Commitment of,~~ Percentage of and the principal amount ~~(and stated interest)~~ of the Term Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Credit Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Term Loans and any Term Loan Notes evidencing the Term Loans recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan, whether~~ Term Loan or ~~not evidenced by a Note,~~ other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Term Loan Note shall expressly so provide). Any assignment or transfer of all or part of a Term Loan evidenced by a Term Loan Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Term Note evidencing such Term Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Term Loan Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. . (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Term Loan or Term Loan Note to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.. 9.7

Appears in 1 contract

Sources: Credit Agreement (Cogentrix Energy Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may~~, without the consent of any other party to this Agreement~~, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees that each Participant shall be ~~entitled~~ deemed to ~~the benefits of Sections 2.17, 2.18 and 2.19 (and subject~~ have agreed to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied share with the ~~requirements of said~~ Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Registerhereunder. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent ~~for such consent~~(which shall not be unreasonably withheld), to an additional bank or financial institution (ban "Assignee") all or any part of its rights and obligations under this Agreement and the ~~Administrative Agent, and (c) each Issuing Lender, in each case~~ other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit G, with appropriate completions (an "Assignment and Acceptance"), executed by such Assignee, such ~~Assignor and any other Person whose consent~~ assigning Lender (and, in the case of an Assignee that is ~~required pursuant to this paragraph~~not then a Lender or an affiliate thereof, by the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureRegister. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined -35- 41 pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or Loans~~ Commitments as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee ~~and any other Person whose consent~~ (and, in the case of an Assignee that is ~~required~~ not then a Lender or an affiliate thereof, by ~~Section 10.6(c), together with payment to~~ the Administrative ~~Agent of a registration and processing fee of US$3,500~~Agent), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Borrower. (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Borrower pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Transtexas Gas Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent, all future holders of the Loans~~ Agents and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement~~its commercial banking, commercial lending or investing business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 13.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~6.10, ~~2.18~~ 6.11, and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 6.12 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~6.11, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its commercial banking, commercial lending or investing business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent ~~for such consent,~~ and the Issuing Lender (~~b) the Administrative Agent, and (c) each Issuing Lender,~~ which in each case shall not be unreasonably withheld), to an additional bank, financial institution or fund that invests in syndicated bank loans (an "Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit P, with appropriate completions (an "Assignment and Acceptance"), executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Administrative Agent and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Issuing Lender) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided, that in the case of any such assignment to an additional bank or financial institution, the sum of the aggregate principal amount of the Loans, the aggregate amount of the L/C Obligations and the aggregate amount of the unused Revolving Credit Commitment being assigned are not less than $5,000,000 (~~it being understood~~ or such lesser amount as may be agreed to by the Borrower and ~~agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities lawsAgent); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or Loans~~ Commitments as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this Section, the ~~foregoing~~consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrower, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 11(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in Section ~~10.2~~ 13.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in -80- 88 the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Administrative Agent and ~~any other Person whose consent is required by Section 10.6(c),~~ the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Borrower. (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the provisions of Section 13.15, any and all financial information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Borrower pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Denali Inc)

Successors and Assigns; Participations and Assignments. (a) ~~This~~ The provisions of this Agreement shall be binding upon and inure to the benefit of the ~~Borrowers, the Lenders, the Administrative Agent, all future holders of the Loans~~ parties hereto and their respective successors and ~~assigns~~assigns permitted hereby, except that ~~no Borrower~~ the Borrowers may not assign or otherwise transfer any of ~~its~~ their rights or obligations ~~under this Agreement~~ hereunder without the prior written consent of each Lender (~~except for~~ and any attempted assignment or transfer by ~~a Canadian Borrower~~the Borrowers without such consent shall be null and void). Nothing in this Agreement, ~~a Spanish Borrower~~ expressed or ~~a Swedish Borrower as~~ implied, shall be construed to confer upon any Person (other than the parties hereto and their respective successors and assigns permitted hereby) any legal or equitable right, remedy or claim under or by ~~Section 7.3) and Lenders may sell participations in or assign all or any part~~ reason of ~~their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23~~this Agreement. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent ~~of any other party to this Agreement~~of, ~~in accordance with applicable law~~or notice to, ~~at any time~~ the Borrowers or the Administrative Agent, sell participations to one or more ~~Eligible Assignees~~ banks or other entities (~~each,~~ a “"Participant”") ~~participating interests~~ in ~~any Loan owing to~~ all or a portion of such Lender~~, any Revolving Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s~~ 's rights and/or obligations under this Agreement (including all or a portion of its Revolving Credit Commitment and/or the Loans owing to ~~the other parties to~~ it); 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 ~~thereof~~of such obligations and (iii) the Borrowers, ~~such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and the Borrowers and~~ the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement. ~~In no event~~ Any agreement or instrument pursuant to which a Lender sells such a participation shall ~~any Participant under any~~ provide that such ~~participation have any~~ Lender shall retain the sole right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under enforce this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Transwestern Holdings Lp)

Successors and Assigns; Participations and Assignments. (ai) This Agreement shall be binding upon and inure to the benefit of of, the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except ~~that no~~ that, subject to Sections 9.3(a) and 9.3(b), the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (bii) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a~~ “~~Participant~~Participants”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the beneficial holder of any such Loan and all other rights against the other parties to this Agreement and the other Credit Documents for all purposes under this ~~Agreement~~Agreement and the other Credit Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Credit Document, or any consent to any departure by any ~~Borrower~~ Credit Party therefrom, except to the extent that such amendment, waiver or consent would directly forgive any principal of any Loan or reduce the ~~principal of~~stated rate, or ~~interest on, the Loans or~~ forgive any ~~fees payable hereunder~~portion, or postpone the date for the payment, of any principal, interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), increase the aggregate amount of the Commitments of any Lender, postpone the date of the final scheduled maturity of any Loan or release or limit the ~~Loans~~liability of Opco under the Guarantee, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 12.8 as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.10, ~~2.18~~ 2.11, 3.5 and ~~2.19~~ 5.4 (~~and subject~~ to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)extent applicable) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; , provided that, ~~in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further, that~~ no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For the avoidance of doubt~~, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); further provided that no ~~Lender~~ Participant shall be entitled to the benefits of Section 5.4 until such date as such Participant shall have ~~any obligation~~ provided written notice to ~~disclose all or any portion~~ the Borrower and the Administrative Agent of the ~~Participant Register~~ circumstances giving rise to ~~any Person (including~~ the ~~identity~~ application of ~~any Participant or any~~ Section 5.4 together with sufficient information ~~relating~~ to ~~a Participant’s interest in any commitments, loans, letters of credit or its other~~ enable the Borrower to comply with their obligations under ~~any Loan Document) except~~ Section 5.4. Furthermore, each time a participating interest is sold pursuant to the ~~extent that~~ provisions hereof, the Lender who sold such ~~disclosure is necessary~~ participating interest shall, if not already done so by the Participant, deliver to ~~establish that such commitment, loan, letter of credit or other obligation is in registered form~~ the Borrower sufficient information to enable the Borrower to comply with their obligations under Section ~~5f.103-1(c~~5.3. (iii) ~~of the United States Treasury Regulations or~~Any Lender may, in the ~~case~~ ordinary course of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant its business and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, ~~all~~ at any time and from time to time assign to (A) any Lender or any Affiliate thereof or Approved Fund with respect thereto (with the consent of the Borrower if any increased costs (which, for greater certainty, shall not include any increase in the BA Discount Rate which would result from such Lender, Affiliate or Approved Fund being a Schedule II Lender, Schedule III Lender or Non-Acceptance Lender) would result therefrom) or, (B) with the consent of the Borrower and the Administrative Agent (which in each case shall not be unreasonably withheld or delayed, it being understood that, without limitation, the Borrower shall have the right to withhold their consent to any assignment if, in order for such assignment to comply with applicable law, the Borrower would be required to obtain the consent of, or make any filing or registration with, any Governmental Authority), to an additional bank or fund that is regularly engaged in making, purchasing or investing in loans or securities or a ~~portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee~~ financial institution (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the ~~consent~~other Credit Documents pursuant to an assignment and assumption agreement, ~~not to be unreasonably withheld or delayed, of~~ substantially in the form set forth in Schedule H hereto (~~a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~“Assignment and Assumption”), ~~or 8(h) or 8(i) (~~with ~~respect to a Borrower), has occurred and is continuing; provided that~~ such ~~consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from~~ modifications as the Administrative Agent ~~for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant~~ shall require from time to ~~an Assignment and Assumption~~time, executed by such ~~Assignee~~Assignee and such assigning Lender (and, ~~such Assignor~~ in the case of an Assignee that is not then a Lender, an Affiliate thereof or an Approved Fund with respect thereto, by the Borrower and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Administrative Agent) and delivered to the Borrower and to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed that such Assignee~~Register, ~~if it shall not be~~ together with sufficient information to enable the Borrower to comply with their obligations under Section 5.3, provided that, except in the case of an assignment of all of a Lender’s interests under this Agreement, ~~shall deliver~~ unless otherwise agreed to by the Administrative ~~Agent~~ Agent, no such assignment to an ~~administrative questionnaire in which the~~ Assignee ~~designates one~~ (other than any Lender, any Affiliate thereof or ~~more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower~~ any Approved Fund with respect thereto) and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be ~~entitled, without the consent~~ in an aggregate principal amount of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureless than $5,000,000. Upon such execution, delivery, acceptance and recording in (referred to as the ~~Register pursuant to Section 10.6(d~~“Assignment Effective Date”), ~~from and after the effective date determined pursuant to such Assignment and Assumption,~~ (xA) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth ~~therein,~~ therein and (yB) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all or the remaining portion of an ~~Assignor~~assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Agreement to the ~~foregoing~~contrary, (A) the consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default ~~under Section 8(a) or 8(b), or Section 8(h) or 8(i) has~~ shall have occurred and is be continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.and

Appears in 1 contract

Sources: Credit Agreement

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; ~~provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and~~ provided~~, further~~, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Affiliate thereof or, with the ~~consent~~consent of the Borrower, the Agents and, with respect to Revolving Credit Loans, the Issuing Lender, which, in each case, shall not to be unreasonably withheld or delayed, ~~of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect~~ to a ~~Borrower)~~bank, ~~has occurred~~ financial institution or other entity (an "Assignee") all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose consent is required pursuant to this paragraph,~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee shall be in an aggregate principal amount of less than $2,000,000 (~~it being understood and agreed that~~ other than in the case of an assignment of all of a Lender's interests under this Agreement). Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the ~~Administrative Agent~~ Agents and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee~~the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment involving ▇▇▇▇▇▇ Commercial Paper Inc. or Swiss Bank Corporation or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Grand Union Co /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender other than any Conduit Lender may, with notice to, but without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than any entity that is in the same line of business as the Borrower and is a direct competitor of the Borrower) (each, a “"Participant”") participating ----------- interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing -------- such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 11.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~-------- 4.10, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any -------- ------- greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “"Assignor”") ~~shall be permitted to assign~~may, in -------- accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Lender Affiliate or any Approved Fund or, with the ~~consent~~consent of the Borrower, the Syndication Agent and the Administrative Agent (which, in the case of the Borrower, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and ~~is continuing; provided that such consent shall be deemed given if~~ -------- obligations under this Agreement and the ~~Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case~~ other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent (with a copy to the Syndication Agent) for its acceptance and recording in the ~~relevant Register~~ Register; provided that unless otherwise agreed -------- by the Borrower and the Administrative Agent (~~it being understood~~ x) no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $1,000,000 and ~~agreed that~~ the aggregate principal amount of the assigning Lender's Revolving Commitment and Loans remaining after such ~~Assignee, if it~~ assignment shall not be less than $1,000,000, in each case except in the case of an assignment of all of a Lender's interests under this Agreement), (y) in the case of any assignment of Revolving Commitments (other than to a Lender or a Lender Affiliate), the consent of each Issuing Lender shall ~~deliver~~ be required (which shall not be unreasonably withheld or delayed), and (z) until the first anniversary of the Closing Date, no consent shall be required for any assignment by the Syndication Agent or any of its Affiliates (other than as agreed to between the Administrative Agent ~~an administrative questionnaire~~ and the Syndication Agent). For purposes of the proviso contained in ~~which~~ the ~~Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about~~ preceding sentence, the ~~Parent Borrower~~ amount described therein shall be aggregated in respect of each Lender and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable lawsLender Affiliates, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if any. Any such assignment ~~would increase~~ need not be ratable as among the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 11.6, the consent of the Borrower shall not be required for any assignment that occurs when an Event of Default pursuant to Section 9(f) (with respect to the Borrower) shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any Borrower~~ the Borrower, the Syndication Agent or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~11.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the -------- recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~11.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except, in the case of an assignment by or to the Syndication Agent or any of its Affiliates), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 11.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (ih) Each of Holdings, the Borrower, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit -------- Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Appleton Papers Inc/Wi)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the ~~Lenders, the Administrative Agent~~Lender, all future holders of the ~~Loans~~ Loan and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23the Lender. (b) ~~Any Lender other than any Conduit~~ The Lender may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in ~~any~~ the Loan ~~owing to such Lender, any Revolving Commitment of such Lender~~ or any other interest of ~~such~~ the Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a the Lender of a participating interest to a Participant, ~~such~~ the Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, ~~such~~ the Lender shall remain solely responsible for the performance thereof, ~~such~~ the Lender shall remain the holder of ~~any such~~ the Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers and the Administrative Agent~~ Borrower shall continue to deal solely and directly with ~~such~~ the Lender in connection with ~~such~~ the Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the ~~Loans~~ Loan or any fees payable hereunder, or postpone the date of the final maturity of the ~~Loans~~Loan, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the ~~Loans~~ Loan are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a the Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lender the ~~Borrowers nor~~ proceeds thereof as provided in Section 9.7(a) as fully as if it were the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such ParticipantLender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.9, ~~2.18~~ 2.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.11 with respect to its participation in the ~~Revolving Commitments and the Loans~~ Loan outstanding from time to time as if it was a the Lender; provided that, in the case of Section ~~2.18~~2.10, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, all or a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.,

Appears in 1 contract

Sources: Credit Agreement (Commodore Media Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the ~~Administrative Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its commercial banking business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other financial institutions (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under ~~this Agreement to the other parties to~~ this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the Borrowers and the ~~Administrative~~ Agent shall continue to deal solely and directly with such Lender in ~~connection with such Lender’s rights and obligations under this Agreement~~connection 1. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees The Borrowers agree that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the proceeds thereof as fully as if it were a Lender hereunder. The Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also ~~agrees~~ agree that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 4.14, ~~2.18~~ 4.15, 4.16 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.17 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of ~~Section 2.18~~subsection 4.16, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the ~~transferor Lender~~ Lenders would have been entitled to receive in respect of the amount of the participation transferred by such ~~transferor~~ Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its commercial banking business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of the Borrowers and the Agent (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, which in each case shall not be unreasonably withheld), to an additional bank or financial institution (an "Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit G, executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrowers and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Agent) and delivered to the ~~Administrative~~ Agent for its acceptance and ~~recording in the relevant Register (it being understood and agreed that such Assignee~~recording, 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, ~~notwithstanding anything~~ in the case of any such assignment to an additional bank or financial institution, (x) the ~~contrary in this Agreement or any~~ aggregate amount of the ~~Loan Documents, no Lender shall~~ Commitments being assigned are not less than $1,000,000 (or such lesser amount as may be ~~entitled, without~~ agreed to by the ~~consent of~~ Borrowers and the ~~Parent Borrower, to make an assignment under this Section 10.6(c~~Agent) and (y) if such assignment ~~would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ is of less than all of the ~~date of such assignment or if, as~~ rights and obligations of the ~~date~~ assigning Lender, the aggregate amount of the Commitment remaining with the assigning Lender are each not less than $1,000,000 (or such ~~assignment~~lesser amount as may be agreed to by the Borrowers and the Agent). Notwithstanding the foregoing, ~~such assignment would increase~~ so long as no event described in subsection 9(f) shall have occurred and be continuing, unless the ~~cost under this Agreement to~~ Borrowers shall have otherwise consented, NationsBank, N.A. shall at all times retain (i) not less than thirty percent (30%) of the sum of the Commitments of the Lenders and (ii) a Commitment Percentage of each Facility greater than that of any ~~Borrower in the foreseeable future~~other single Lender hereunder. Upon such execution, delivery, acceptance and recording (and the payment of the registration and processing fee described in ~~the Register pursuant to Section 10.6(d~~clause (e) below), from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of ~~an Assignor’s~~ the Lenders' rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) of this subsection, the ~~foregoing,~~ consent of the Borrowers shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in subsection 9(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The ~~Administrative Agent shall~~Agent, on behalf of the Borrowers, shall maintain at ~~its~~ the address of the Agent referred to in ~~Section 10.2~~ subsection 11.3 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register ~~shall constitute~~ shall, to the extent permitted by applicable law, be prima facie evidence of the ~~same, in the absence of manifest error~~information contained therein, and the Borrowers, the ~~Administrative~~ Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on the relevant Register only~~ available for inspection by any Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrowers and ~~any other Person whose consent is required by Section 10.6(c~~the Agent), together with payment to the ~~Administrative~~ Agent of a registration and processing fee of ~~US$3,500~~$2,500 by such Assignee, the ~~Administrative~~ Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Borrowers; provided that no such fee shall be payable with respect to any assignment from an assigning Lender to an affiliate thereof. (f) The Borrowers authorize each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lenders' possession concerning any Borrower or any Affiliate of a Borrower which has been delivered to such Lender by or on ~~the effective date determined~~ behalf of such Borrower pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of any such Borrower in connection with such Lenders' credit evaluation of any such Borrower and its Affiliates prior to becoming a party to this Agreement. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section 10.6~~ subsection 11.8 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Advanced Communication Systems Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.20 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding and other amounts due hereunder from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, any affiliate thereof or ~~a portion of its Loans and Revolving Commitments hereunder to~~ an ~~Eligible Assignee (an “Assignee”)~~ Approved Fund or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed), to an additional bank, financial institution or other entity (an "Assignee") all or any part of ~~(a) the Parent Borrower~~its rights and obligations under this Agreement pursuant to an Assignment and Acceptance, ~~unless~~ executed by (i) ~~the Assignee is a Lender or a Lender Affiliate or~~ such Assignee, (ii) ~~an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that~~ such ~~consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent~~Assignor, (biii) the Administrative Agent, (iv) with respect to assignments of rights and obligations under the Revolving Credit Facility, the Swingline Lender, (v) with respect to assignments of rights and obligations under the Revolving Credit Facility or the Tranche A LC Facility, the Issuing Lender and (cv) ~~each Issuing Lender, in each case pursuant to an Assignment and Assumption, executed by such Assignee, such Assignor and any other Person whose~~ the Borrower (which consent ~~is required pursuant to this paragraph~~of the Borrower shall not be unreasonably delayed or withheld), and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender, any affiliate thereof or an Approved Fund) shall be in an aggregate principal amount of less than $1,000,000, in each case other than in the case of an assignment of all of a Lender's interests under this Agreement, unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or~~ and Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, provided that such Assignor shall continue to be entitled to the benefits of the indemnity provisions hereunder for the period prior to the assignment). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ (i) the consent of the Borrower shall not be required for any assignment of funded Term Loans or for any assignment that occurs when an Event of Default shall have occurred and be continuing 74 and (ii) the consent of the Borrower or and the Administrative Agent shall not be required for any assignment to a Lender, an Affiliate of a Lender or ~~all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~an Approved Fund. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, ~~and~~ the principal amount ~~(and stated interest)~~ of the Loans and Reimbursement Obligations of the Borrower owing ~~to,~~ to each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (with only one such fee payable in connection with simultaneous assignments to or by two or more Approved Funds), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto; provided, however, that no such fee shall be payable in the case of an assignment by a Lender to an affiliate of such Lender or an Approved Fund with respect to such Lender; and provided, further, that, in the case of contemporaneous assignments by a Lender to more than one fund managed by the same investment advisor (which funds are not then Lenders hereunder), only a single such fee shall be payable for all such contemporaneous assignments. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of the Borrower or the Administrative Agent, assign or pledge all or ay portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, to any trustee for or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities; provided that ~~the~~ any foreclosure ~~on any~~ or similar action by such ~~pledged Loan~~ trustee or representative shall be subject to the provisions ~~regarding restrictions on assignments contained in~~ of this Section ~~10.6~~10.6 regarding assignments. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Rent a Center Inc De)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may~~, without the consent of any other party to this Agreement~~, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan or L/C Obligation owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative~~ Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 11.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; provided that, in the case of Section ~~2.18~~4.10, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in accordance with applicable law, at any time and from time to time assign to any Person (an "Assignee") all or ~~a portion~~ any part of its ~~Loans~~ rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, 102 substantially in the form of Exhibit A, executed by such ~~Assignee,~~ Assignee and such ~~Assignor and any other Person whose consent is required pursuant to this paragraph,~~ assigning Lender and delivered to the ~~Administrative~~ Agent for its acceptance and recording in the ~~relevant~~ Register (~~it being understood and agreed that such Assignee, if it shall not be~~ with a ~~Lender, shall deliver~~ copy to the ~~Administrative~~ Borrower) and upon payment to the Agent ~~an administrative questionnaire~~ of a processing fee in ~~which~~ the ~~Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about~~ amount of $3,500 by the Parent Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable ~~laws, including Federal and state securities laws)~~Lender and/or Assignee; provided that, ~~notwithstanding anything to the contrary in this Agreement or any of the Loan Documents,~~ (i) no ~~Lender~~ such assignment shall be ~~entitled~~in an amount less than $5,000,000 or a whole multiple of $100,000 in excess thereof or, if less than $5,000,000, the entire amount of such Lender's applicable Commitment; and (ii) no such assignment shall be made without the prior consent of the ~~Parent Borrower, to make an assignment under this Section 10.6(c~~Agent and the Borrower (which consent shall not be unreasonably withheld or delayed) if unless such assignment ~~would increase the cost under this Agreement~~ is to ~~any Borrower~~another Lender or an Affiliate of a Lender, ~~including without limitation under Section 2.17 or 2.18, as of the date of~~ in which event no such ~~assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~consent shall be required. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this ~~Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this~~ Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrower (through the Agent), and the Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit P (an "Alternative Note"). Alternative Notes may not be exchanged for promissory notes that are not Alternative Notes. (e) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8 (Certificate of Foreign Status of the U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities), together with an annual certificate stating that (i) such Alternative Noteholder or beneficial owner, as the case may be, is not a "bank" within the meaning of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case may be, shall promptly notify the Borrower if at any time such Alternative Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to provide such certification to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purposes). 103 (f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f). (g) The ~~Administrative Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Agent referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the ~~Administrative~~ Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (fh) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee and ~~any other Person whose consent is required by Section 10.6(c)~~the Borrower, if applicable, together with payment to the ~~Administrative~~ Agent of a registration and processing fee of ~~US$3,500~~$3,500 from the applicable Lender and/or Assignee, the ~~Administrative~~ Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the ~~effective date determined pursuant thereto~~Lenders and the Borrower. (gi) Subject to Section 11.16, the Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the Transferee agreeing to be bound by the provisions of Section 11.16, any and all financial information in such Lender's possession concerning the Borrower and the Subsidiaries which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Subsidiaries prior to becoming a party to this Agreement. 104 (j) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Radio One Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (ba) Any ~~Lender other than any Conduit~~ Lender may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.17 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount 77 72 pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (cb) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this ~~paragraph~~Section 10.6(c), and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood and agreed that such Assignee, if it~~ other than any Lender or any affiliate thereof) shall ~~not~~ be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~shall deliver to~~ unless otherwise agreed by the Borrower and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Borrower shall not be required for any ~~Borrower or the Administrative Agent any or all~~ assignment that occurs when an Event of ~~the Loans it may have funded hereunder and~~ Default pursuant to ~~its designation agreement~~ Section 8(f) shall have occurred and ~~without regard~~ be continuing with respect to the ~~limitations set forth in the first sentence of this Section 10.6(c)~~Borrower. (dc) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (fd) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (ge) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hf) ~~Each Borrower, upon receipt of written notice from the relevant Lender,~~ The Borrower agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Selfix Inc /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, the Arrangers, all future holders of the Bridge Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of ~~its~~ their rights or obligations under this Agreement without the prior written consent of the Administrative Agent and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable ~~law~~Law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Bridge Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents; provided, however, that no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds, (ii) a natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural Person) or (iii) a Disqualified Institution (it being understood that the list of Disqualified Institutions shall be available to all Lenders). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Bridge Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in each case~~ all Lenders pursuant to ~~the extent subject to such participation~~Section 9. 1. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Bridge Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ; provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 2.14 as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Sections ~~2.17~~2.15, ~~2.18 and 2.19~~ 2.16 or 2.17 (~~and~~ subject to the requirements and limitations ~~therein~~of such Sections, Section 2.18 and 2.19, including the requirements ~~under~~ of Section ~~2.18(f~~2.17(f) and (g) (it being ~~understood~~ agreed that ~~the documentation~~ any required ~~under Section 2.18(f)~~ forms shall be ~~delivered~~ provided solely to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Bridge Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further,~~ that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent that entitlement to ~~pay any~~ a greater amount ~~pursuant to Section 2.18 as~~ results from a ~~result of~~ Change in Law that occurs after such Participant acquires the applicable participation, unless such transfer ~~of a participation to a Participant than such Loan Party would have been required to pay absent such transfer~~was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation (and each Granting Lender whose SPC provides a Bridge Loan) shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant (and each such SPC) and the principal and interest amounts ~~(and stated interest)~~ of each Participant’s (and each such SPC’s) interest in the Bridge Loans ~~or other obligations under the Loan Documents~~ held by it (the “Participant Register”)~~; provided that no~~ . 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 the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of ~~the~~ a Participant Register ~~to any Person~~ (including the identity of any Participant (or any SPC) or any information relating to a Participant’s (or a SPC’s) interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent ~~that~~ such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant RegisterRegulations. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~Law and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed) and, ~~all~~ prior to the Bridge Loan Maturity Date, so long as no Event of Default under Section 7.1(a)(1), (7) or ~~a portion of its Loans~~ (8) has occurred and ~~Revolving Commitments hereunder~~ is continuing, the Borrower (which consent shall not be unreasonably withheld, conditioned or delayed), at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, or to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption,~~ Acceptance executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose consent is required pursuant to this paragraph,~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that (it 1) if any assignment is being ~~understood~~ made to any Lender, an affiliate of a Lender or a Related Fund, (2) if a Demand Failure Event has occurred and ~~agreed~~ is continuing or (3) to the extent that the Arrangers, in their capacity as lenders, would, after giving effect to such ~~Assignee~~assignments, hold at least 51% in aggregate principal amount of the outstanding Bridge Loans, such assignments will not be subject to the above described consents; provided, further, that no assignment to an Assignee (other than any Lender or any affiliate thereof) of Bridge Loans shall be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Bridge Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall ~~not be a Lender,~~ retain any Bridge Loans) shall ~~deliver to~~ have Bridge Loans in an aggregate principal amount of at least $1,000,000 unless otherwise agreed by the Administrative Agent ~~an administrative questionnaire in which~~ and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable lawsBorrower; provided, ~~including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents~~however, no Lender shall be ~~entitled, without the consent~~ permitted to assign all or any part of ~~the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost~~ its rights and obligations under this Agreement to (i) any ~~Borrower, including without limitation under Section 2.17 or 2.18, as~~ of the ~~date~~ Permitted Investors, any of ~~such assignment~~ their respective Affiliates or ifany of their respective associated investment funds, as (ii) the Borrower or any of its Subsidiaries, (iii) any natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the ~~date~~ primary benefit of ~~such assignment, such assignment would increase~~ a natural Person) or (iv) any Disqualified Institution (it being understood that the ~~cost under this Agreement~~ list of Disqualified Institutions shall be available to ~~any Borrower in the foreseeable future~~all Lenders). Upon such execution, delivery, acceptance and recording in the ~~Register pursuant to Section 10.6(d)~~Register, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or Bridge Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent ~~provided~~ of the interest assigned in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.16, 2.17 and 9.5 in respect of the period prior to such effective date). ~~Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all~~ For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. The Administrative Agent shall not be responsible for monitoring the ~~first sentence of this Section 10.6(c)~~Disqualified Institutions list and shall have no liability for non-compliance by any Lender. (d) ~~The~~ Notwithstanding anything herein to the contrary, any Lender may, at any time, assign all or any portion of its rights and obligations under this Agreement in respect of its Bridge Loans to any Affiliated Lender on a non-pro rata basis through open market purchases at prices at or above the full par value of such Bridge Loans without the consent of the Administrative Agent; provided that: (i) any Bridge Loans acquired by the Borrower or any of its Subsidiaries shall, to the extent permitted by applicable Law, be retired and cancelled immediately upon the acquisition thereof; provided that upon any such retirement and cancellation, the aggregate principal amount of the Bridge Loans shall be deemed reduced by the full par value of the aggregate principal amount of the Bridge Loans so retired and cancelled; (ii) any Bridge Loans acquired by any Non-Debt Fund Affiliate may (but shall not be required to) be contributed to the Borrower or any of its Subsidiaries (it being understood that any Bridge Loans so contributed shall, to the extent permitted by applicable Law, be retired and cancelled promptly upon such contribution); provided that upon any such cancellation, the aggregate outstanding principal amount of the Bridge Loans shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal amount of the Bridge Loans so contributed and cancelled; (iii) the relevant Affiliated Lender and the Assignor shall have executed an Affiliated Lender Assignment and Acceptance and shall have identified itself as an Affiliated Lender on such Affiliated Lender Assignment and Acceptance; (iv) after giving effect to the relevant assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount of all Bridge Loans then held by all Affiliated Lenders shall not exceed 30% of the aggregate principal amount of the Bridge Loans then outstanding (after giving effect to any substantially simultaneous cancellations thereof) (the “Affiliated Lender Cap”); provided, that each party hereto acknowledges and agrees that the Administrative Agent ~~shall~~have no duty to monitor, ~~on behalf~~ and shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person in connection with, any compliance or non-compliance with this clause (d)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it being understood and agreed that the Affiliated Lender Cap is intended to apply to any Bridge Loan made available to Affiliated Lenders by means other than formal assignment (e.g., as a result of an acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender); provided, further, that to the extent that any assignment to any Affiliated Lender would result in the aggregate principal amount of Bridge Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap (after giving effect to any substantially simultaneous cancellation thereof), the assignment of the ~~Borrowers~~relevant excess amount shall be null and void; (v) no Default or Event of Default exists at the time of the entry into a binding agreement with respect to the relevant open market purchase; (vi) by its acquisition of Bridge Loans, ~~maintain at~~ each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that: (A) the Bridge Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Required Lender or other Lender vote; provided that (x) such Affiliated Lender shall have the right to vote (and the Bridge Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment, modification, waiver, consent or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the case may be, and (y) no amendment, modification, waiver, consent or other action shall (1) disproportionately affect such Affiliated Lender in its ~~address referred~~ capacity as a Lender as compared to other Lenders that are not Affiliated Lenders or (2) deprive any Affiliated Lender of its share of any payments which the Lenders are entitled to share on a pro rata basis hereunder, in ~~Section 10.2~~ each case without the consent of such Affiliated Lender; and (B) such Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone) or participate in any meeting or discussion (or portion thereof) solely among the Administrative Agent and any Lender or solely among Lenders and, in each case, to which the Loan Parties and their representatives are not invited, or (ii) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information or materials have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any case, other than the right to receive a ~~copy~~ Funding Notice and notices of ~~each Assignment~~ prepayments and ~~Assumption~~ other administrative notices in respect of its Bridge Loans required to be delivered to ~~it and a register~~ Lenders pursuant to Section 2); (~~each~~vii) no Affiliated Lender shall be required to represent or warrant that, ~~a “Register”) for the recordation~~ as of the ~~names~~ date of any such purchase or assignment, it is not in possession of material non-public information with respect to the Borrower and/or any Subsidiary thereof and/or their respective securities in connection with any assignment permitted by this Section 9.6(d); and (viii) in any proceeding under any Debtor Relief Law, the interest of any Affiliated Lender in any Bridge Loan will be deemed to be voted in the same proportion as the vote of Lenders that are not Affiliated Lenders on the relevant matter and ~~addresses~~ each Affiliated Lender hereby acknowledges, agrees and consents that if, for any reason, its vote to accept or reject any plan pursuant to the Bankruptcy Code of the ~~Lenders~~ United States is not deemed to have been so voted, then such vote will be (i) deemed not to be in good faith and ~~the Revolving Commitment of, and the principal amount~~ (~~and stated interest~~ii) “designated” pursuant to Section 1126(e) of the Bankruptcy Code of the United States such that the vote is not counted in determining whether the applicable class has accepted or rejected such plan in accordance with Section 1126(c) of the Bankruptcy Code of the United States; provided that each Affiliated Lender will be entitled to vote its interest in any Bridge Loan for any plan of reorganization or other arrangement with respect to which the relevant vote being sought proposes to treat the interest of such Affiliated Lender in such Bridge Loan in a manner that is less favorable to such Affiliated Lender than the proposed treatment of Bridge Loans ~~owing to~~held by other Lenders. Notwithstanding anything to the contrary contained herein, ~~each~~ any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Bridge Loans to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time~~. The entries in each Register shall constitute prima facie evidence~~ , purchase Bridge Loans and/or Commitments on a non-pro rata basis through open market purchases without the consent of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent~~) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable~~, in each ~~case unless~~ case, notwithstanding the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated requirements set forth in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall subclauses (i) ~~promptly accept such Assignment and Assumption and~~ through (iiviii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable lawclause (d); provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.t

Appears in 1 contract

Sources: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans 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 no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~the Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”) "), including, without limitation, any Conduit Participant, participating interests in any Loan owing to such Lender, any Tranche A Incremental Term Commitment or Revolving Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would (i) reduce the ~~principal of~~amount or extend the scheduled date of amortization or maturity of any Loan, or (ii) reduce the rate of interest ~~on, the Loans~~ or any ~~fees payable hereunder,~~ fee or ~~postpone~~ extend any due date thereof or (iii) increase the amount or extend the expiry date of ~~the final maturity of the Loans~~any Lender's commitment, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Tranche A Incremental Term Commitments and the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.83 78 (c) Any Lender other than any Conduit Lender (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, any affiliate of any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Approved Fund or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ except in the case of an assignment of all of a Lender's interests under this Agreement, no such assignment to ~~the contrary in this Agreement~~ an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund, each an "Intracreditor Assignee") shall (i) be in an aggregate principal amount of less than (x) $5,000,000, in the case of the ~~Loan Documents~~Revolving Facility and the Tranche A Term Facility or (y) $1,000,000, in the case of the Tranche B Term Facility and the Incremental Term Facility or (ii) cause the Assignor to have Aggregate Exposure of less than (x) $3,000,000, in the case of the Revolving Facility and the Tranche A Term Facility or (y) $1,000,000, in the case of the Tranche B Term Facility and the Incremental Term Facility, in the case of either clause (i) or (ii), unless otherwise agreed by the Borrower and the Administrative Agent; provided further that, except in the case of an assignment of all of a Lender's interests under this Agreement, no ~~Lender~~ such assignment to an Intracreditor Assignee shall (i) be in an aggregate principal amount of less than $250,000 or (ii) cause the Assignor to have Aggregate Exposure of less than $250,000, in each case unless otherwise agreed by the Borrower and the Administrative Agent. For purposes of clauses (i) and (ii) of the preceding sentence, the amounts described therein shall be ~~entitled~~aggregated in respect of each Lender and its related Approved Funds, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if any. Any such assignment ~~would increase~~ need not be ratable as among the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a Tranche A Incremental Term Commitment or a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs when an Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. On the effective date of any Assignment and Acceptance, the Administrative Agent shall give notice of the terms thereof to the Syndication Agent. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any~~ the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Tranche A Incremental Term Commitment and the Revolving Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the ~~Administrative Agent~~ 84 79 Agents and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. The Administrative Agent will promptly send a copy of the Register to the Borrower upon request. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan to any Federal Reserve Bank in accordance with applicable ~~law~~law or including, in the case of any Lender that is an investment fund, any pledge or assignment of all or any portion of such Lender's rights under this Agreement to any holders of obligations owed, or securities issued, by such Lender as security for such obligations or securities, or to any trustee for, or any other representative of, such holders; provided that ~~the foreclosure on~~ no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) Each ~~Borrower~~of Holdings, ~~upon receipt of written notice from~~ the ~~relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each~~ Borrower, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Charter Communications Holdings Capital Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each ~~Lender (except for~~ Lender. In furtherance and not in limitation of the foregoing, no party to the Pre-Petition Credit Agreement or the DIP Credit Agreement shall have any ~~assignment by~~ rights, duties or obligations under this Agreement or the other Loan Documents, nor shall any such party be entitled to any of the benefits of this Agreement or the other Loan Documents, unless such party is also a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant party to ~~Section 2.23~~this Agreement. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time, subject to the consent of the Administrative Agent (which shall not be unreasonably withheld), assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or any Approved Fund or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed, ) (provided that no such consent need be obtained for assignments involving the Administrative Agent or its Affiliates and no consent of ~~(a)~~ the ~~Parent Borrower, unless (i) the Assignee is~~ Borrower shall be required at any time that a ~~Lender~~ Default or ~~a Lender Affiliate or (ii) an~~ Event of Default ~~under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower),~~ has occurred and is continuing~~; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days~~ ), to any bank, financial institution or other entity (an "Assignee") all or any part of ~~a written request from the Administrative Agent for such consent, (b) the Administrative Agent,~~ its rights and ~~(c) each Issuing Lender, in each case~~ obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee, such Assignor and ~~any other Person whose~~ the Administrative Agent (and, where the consent of the Borrower is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof or an Approved Fund) shall be in an aggregate principal amount of less than $3,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and ~~agreed that~~ the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 8(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence~~ be continuing. For purposes of this Section ~~10.6(c). (d) The Administrative Agent shall~~10.6, ~~on behalf of the Borrowers~~"Approved Fund" shall mean, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to any Lender that is a fund that invests in bank loans, any other fund that invests in bank loans which is managed or advised by the same investment advisor as such ~~assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000~~ Lender or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an ~~Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent~~ affiliate of ~~a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept~~ such ~~Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto~~investment advisor. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Restructuring Credit Agreement (Imperial Sugar Co /New/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of Holdings, the Borrowers, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no neither Holdings nor either Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~Holdings or the Borrowers, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and Holdings, the Borrowers and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on,~~ consent of all Lenders pursuant to Section 10.1. Holdings and the ~~Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees~~ Borrowers agree that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a 105 Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if such Participant were a Lender hereunder. Holdings and the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also ~~agrees~~ agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.21, ~~2.18~~ 2.22 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.23 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.22, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate or Control Investment Affiliate thereof or, with the ~~consent~~consent of Holdings and the Agents and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not to be unreasonably withheld or delayed, ) (provided (x) that no such consent need be obtained by any ▇▇▇▇▇▇ Entity for a period of 180 days following the Closing Date and (ay) the ~~Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event~~ consent of ~~Default under Section 8(a) or 8(b), or 8(h) or 8(i) (~~Holdings need not be obtained with respect to ~~a Borrower~~any assignment of Term Loans), ~~has occurred~~ to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of Holdings, the Agents or the Issuing Lender or the Swing Line Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by Holdings and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $2,500,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by Holdings and ~~agreed that~~ the Agents. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.21, 2.22 and 10.5 in respect of the period prior to such effective date). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of Holdings shall not be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent shall, on behalf of Holdings and the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest 106 error, and Holdings, the Borrowers, ~~the Administrative~~ each Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the relevant Borrower marked "canceled". The Register shall be available for inspection by Holdings, the Borrowers or any Lender (with respect to any entry relating to such ~~Assignee~~Lender's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to any ▇▇▇▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders, the Agents and Holdings. On or prior to such effective date, the relevant ~~Register on~~ Borrower, at its own expense, upon request, shall execute and deliver to the ~~effective date determined~~ Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Avery Berkel Holdings LTD)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Holdings, General Partner, Borrower, the Lenders, ~~the Administrative~~ Agent, all future holders of the Loans and their respective successors and assigns, except that no none of Holdings, General Partner or Borrower may assign or transfer any of its respective rights or obligations under this Agreement without the prior written consent of Agent and each Lender (~~except for~~ and any attempted assignment or transfer by ~~a Canadian Borrower, a Spanish~~ Borrower ~~or a Swedish Borrower as permitted by Section 7.3)~~ without such consent shall be null and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23void). (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of Borrower or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and ~~the Borrowers~~ Borrower and ~~the Administrative~~ Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in each case~~ all Lenders pursuant to ~~the extent subject to such participation~~Section 9. 1. ~~Each~~ Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 9.8(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.11, such Participant shall have complied with the requirements of ~~said~~ Section ~~as if it were a Lender~~ 2.11 and Section 8.11, and; provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation ~~shall, acting solely for this purpose as a non-fiduciary agent of the Borrower,~~ shall 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 Commitments or the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each ~~Person~~ person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, without the consent of any Loan Party, in accordance with applicable ~~law~~law and upon written notice to Agent, ~~all~~ at any time and from time to time assign to any Lender (other than a Defaulting Lender) or ~~a portion~~ any affiliate or Related Fund thereof or, with the consent of Agent (which, in each case, shall not be unreasonably withheld, conditioned or delayed) (provided that no such consent need be obtained by Agent or its ~~Loans and Revolving Commitments hereunder~~ affiliates), to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit K (an “Assignment and Acceptance”), executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of Borrower or Agent is required pursuant to ~~this paragraph~~the foregoing provisions, by Borrower and such other Persons) and delivered to ~~the Administrative~~ Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that (~~it being understood and agreed that~~ i) no such ~~Assignee, if it~~ assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall ~~not~~ be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), 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 unless otherwise agreed by Borrower and Agent; provided that for purposes of determining whether such $1,000,000 threshold has been achieved, amounts assigned by a Lender and its Affiliates and ~~their related parties~~ Related Funds shall be aggregated, (ii) the assignor Lender or ~~their respective securities)~~ Assignee has paid to Agent a processing and recordation fee in the amount of $3,500.00 (which fee may be waived or reduced in the sole discretion of Agent), provided, however, that only one such fee shall be payable in the case of concurrent assignments to Persons that, after giving effect to such assignments, will be ~~made available~~ Related Funds and ~~who~~ (iii) in connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may ~~receive such information in accordance with~~ be outright payment, purchases by the ~~assignee’s compliance procedures and applicable laws~~assignee of participations or other compensating actions, including ~~Federal and state securities laws); provided that~~funding, ~~notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without~~ with the consent of Borrower and Agent, the ~~Parent~~ applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent, each other Lender hereunder (and interest accrued thereon) and Borrower, and (y) acquire (and fund as appropriate) its full pro rata share of all Loans; provided that except to ~~make an~~ the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this ~~Section 10.6(c) if~~ paragraph, then the assignee of such ~~assignment would increase the cost under~~ interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement ~~to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of~~ until such ~~assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~compliance occurs. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or~~ Commitments or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.10, 2.11, 8.11 and 9.5 in respect of the period prior to such effective date). ~~Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all~~ For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in ~~the first sentence of~~ this Section ~~10.6(c~~9.7(c), multiple assignments by two or more Related Funds shall be aggregated. (d) ~~The Administrative~~ Agent shall, on behalf of ~~the Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~Borrower, ~~the Administrative~~ Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any ~~Notes~~ Note evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by Agent to Borrower marked “canceled”. The Register shall be available for inspection by Borrower or any Lender (with respect to any entry relating to such ~~Assignee~~Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.7(c), ~~together with payment to the Administrative Agent of a registration and processing fee of US$3,500~~by each such other Person), ~~the Administrative~~ Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to Borrower. On or prior to such effective date, Borrower, at its own expense, upon request, shall execute and deliver to Agent (in exchange for the ~~effective date determined~~ applicable Note, if any, of the assigning Lender) a new Note or Notes to such Assignee in an amount equal to the Commitment or Loan assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Commitment or Loan, as the case may be, upon request, a new Note or Notes to the Assignor in an amount equal to the Commitment or Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.7 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Notes, ~~including~~ including, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPV”), identified as such in writing from time to time by the Granting Lender to Agent and Borrower, the option to provide to Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to Borrower pursuant to this Agreement; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) nothing herein shall constitute a commitment by any SPV to make any Loan and (ii) if an SPV elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each ~~Borrower~~party hereto hereby agrees that no SPV shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees (which agreement shall survive the ~~Administrative Agent each hereby confirms~~ termination of this Agreement) that, prior to the date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of ~~the latest maturing~~ all outstanding commercial paper ~~note issued by~~ or other indebtedness of any SPV, it will not institute against, or join any other person in instituting against, such ~~Conduit Lender; provided~~SPV any bankruptcy, ~~however~~reorganization, ~~that each Lender designating~~ arrangement, insolvency or liquidation proceedings under the laws of the United States or any ~~Conduit Lender hereby agrees~~ state thereof. In addition, notwithstanding anything to ~~indemnify~~the contrary in this Section 9.7(g), ~~save~~ any SPV may (x) with notice to, but without the prior written consent of, Borrower and ~~hold harmless each other party hereto for~~ Agent and without paying any ~~loss~~processing fee therefor, ~~cost, damage~~ assign all or ~~expense arising out~~ a portion of its ~~inability~~ interests in any Loans to ~~institute~~ the Granting Lender, or with the prior written consent of Borrower and Agent (which consent shall not be unreasonably withheld, conditioned or delayed) to any financial institutions providing liquidity or credit support to or for the account of such SPV to support the funding or maintenance of Loans, and (y) disclose on a ~~proceeding against~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such ~~Conduit Lender during~~ SPV; provided that non-public information with respect to Borrower may be disclosed only with Borrower’s consent which will not be unreasonably withheld, conditioned or delayed. This Section 9.7(g) may not be amended without the written consent of any SPV with Loans outstanding at the time of such ~~period of forbearance~~proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Parsley Energy, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans 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 no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~the Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”) "), including, without limitation, any Conduit Participant, participating interests in any Loan owing to such Lender, any Tranche A Incremental Term Commitment or Revolving Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would (i) reduce the ~~principal of~~amount or extend the scheduled date of amortization or maturity of any Loan, or (ii) reduce the rate of interest ~~on, the Loans~~ or any ~~fees payable hereunder,~~ fee or ~~postpone~~ extend any due date thereof or (iii) increase the amount or extend the expiry date of ~~the final maturity of the Loans~~any Lender's commitment, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Tranche A Incremental Term Commitments and the Revolving Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender, any affiliate of any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any Approved Fund or, with the ~~consent~~consent of the Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such "Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ except in the case of an assignment of all of a Lender's interests under this Agreement, no such assignment to ~~the contrary in this Agreement~~ an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund) shall (i) be in an aggregate principal amount of less than $5,000,000 or (ii) cause the "Assignor to have Aggregate Exposure of less than $3,000,000, in each case unless otherwise agreed by the Borrower and the Administrative Agent. For purposes of clauses (i) and (ii) of the ~~Loan Documents~~preceding sentence, ~~no Lender~~ the amounts described therein shall be ~~entitled~~aggregated in respect of each Lender and its related Approved Funds, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if any. Any such assignment ~~would increase~~ need not be ratable as among the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a Tranche A Incremental Term Commitment or a Revolving Commitment and/or Loans as set forth therein, and (y) the "Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such "Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs when an Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. On the effective date of any Assignment and Acceptance, the Administrative Agent shall give notice of the terms thereof to the Syndication Agent. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any~~ the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the Tranche A Incremental Term Commitment and the Revolving Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the ~~Administrative Agent~~ Agents and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. The Administrative Agent will promptly send a copy of the Register to the Borrower upon request. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an "Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) Each ~~Borrower~~of Holdings, ~~upon receipt of written notice from~~ the ~~relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each~~ Borrower, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Charter Communications Inc /Mo/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no neither the Borrower nor the Subsidiaries may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final scheduled maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 11.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 4.11 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it ~~was~~ were a Lender; provided that, in the case of Section ~~2.18~~4.10, such Participant shall have complied with the requirements of ~~said~~ such Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Person (an "Assignee") all or ~~a portion~~ any part of its ~~Loans~~ rights and ~~Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”) with~~ obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit A, executed by such ~~Assignee,~~ Assignee and such ~~Assignor and any other Person whose consent is required pursuant to this paragraph,~~ --------- assigning Lender and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant~~ Register (~~it being understood and agreed that such Assignee, if it shall not be~~ with a ~~Lender, shall deliver~~ copy 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities lawsBorrower); provided that, ~~notwithstanding anything~~ (i) no such assignment (other than to ~~the contrary in this Agreement~~ any Lender or any ~~of the Loan Documents, no Lender~~ Affiliate thereof) shall be ~~entitled, without~~ in an aggregate principal amount of less than $1,000,000 and in $1,000,000 increments in excess thereof and (ii) each assignment (other than to any Lender or any Affiliate thereof) (A) requires the consent of the ~~Parent Borrower~~Administrative Agent, the Issuing Lender and the Swing Line Lender and (B) made when no Default or Event of Default has occurred and is continuing shall be subject to ~~make an assignment under this Section 10.6(c) if such assignment would increase~~ the ~~cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ prior written consent of the ~~date of such assignment~~ Borrower (which consent shall not be unreasonably withheld or ~~if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~delayed). Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this ~~Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this~~ Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c). (d) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in respect of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrower (through the Administrative Agent), and the Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) registered as provided in paragraph (f) below and substantially in the form of Exhibit J (an "Alternative Note"). Alternative --------- Notes may not be exchanged for promissory notes that are not Alternative Notes. (e) Each Non-U.S. Lender that could become completely exempt from withholding of U.S. Taxes in respect of payment of any Obligations due to such Non-U.S. Lender if the Obligations were in registered form for U.S. Federal income tax purposes and that holds Alternative Note(s) (an "Alternative Noteholder") (or, if such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8 (Certificate of Foreign Status of the U.S. Department of Treasury) (or any successor or related form adopted by the U.S. taxing authorities), together with an annual certificate stating that (i) such Alternative Noteholder or beneficial owner, as the case may be, is not a "bank" within the meaning of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign corporation related to the Company (within the meaning of Section 864(d)(4) of the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case may be, shall promptly notify the Borrower if at any time such Alternative Noteholder or beneficial owner, as the case may be, determines that it is no longer in a position to provide such certification to the Borrower (or any other form of certification adopted by the U.S. taxing authorities for such purposes). (f) An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Alternative Noteholder thereof, and thereupon one or more new Alternative Note(s) in the same aggregate principal amount shall be issued to the designated Assignee(s). No assignment of an Alternative Note and the Obligation(s) evidenced thereby shall be effective unless it has been recorded in the Register as provided in this Section 11.6(f). (g) The Administrative ~~Agent shall~~Agent, on behalf of the ~~Borrowers~~Borrower, shall maintain at ~~its~~ the address of the Administrative Agent referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders (including Alternative Noteholders) and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrower or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (fh) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee ~~and any other Person whose consent is required by Section 10.6(c),~~ together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the ~~effective date determined pursuant thereto~~Lenders and the Borrower. (gi) Subject to Section 11.15, the Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the Transferee agreeing in writing to be bound by the provisions of Section 11.15, any and all financial information in such Lender's possession concerning the Borrower and the Subsidiaries which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Subsidiaries prior to becoming a party to this Agreement. (j) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Media General Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement or any other Loan Document without the prior written consent of the Administrative Agent and each Lender (~~except for~~ and any attempted such assignment ~~by a Canadian Borrower, a Spanish Borrower~~ or ~~a Swedish Borrower as permitted by Section 7.3)~~ transfer without such consents shall be null and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23void). (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Revolving Credit Loan or Tranche C Term Loan owing to such Lender, ~~any~~ the Revolving Credit Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Revolving Credit Loan or Tranche C Term Loan or any Reimbursement Obligation for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower therefrom~~Loan Party therefrom and each Lender shall retain the sole right to enforce any Loan Document and approve any amendment, modification or waiver of any provision of the Loan Documents, except that a selling Lender may agree that, without the Participant’s consent, such selling Lender will not agree to any amendment, waiver or consent to any provisions of the Loan Documents to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or Reimbursement Obligations or any fees payable hereunder, release all or substantially all of the Collateral, release all or substantially all of the Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 9.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Credit Commitments and the Loans and Reimbursement Obligations outstanding from time to time as if it ~~was~~ were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion~~ any affiliate or Approved Fund or Control Investment Affiliate thereof or, with the consent of ~~its Loans~~ each Issuing Lender, the Swing Line Lender, the Administrative Agent and ~~Revolving Commitments hereunder~~ the Borrower (which, in each case, shall not be unreasonably withheld or delayed), to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and~~ (and, where the consent of the Borrower or any other Person ~~whose consent~~ is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and each such other Person) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such consent of the Issuing Lender or the Swing Line Lender need be obtained with respect to any assignment of the Tranche C Term Loans; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate or Approved Fund thereof) shall be in an aggregate principal amount of less than $3,000,000 with respect to Revolving Credit Loans and ~~agreed that such Assignee, if it shall not be~~ $1,000,000 with respect to Tranche C Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~shall deliver to~~ unless (i) otherwise agreed by the Borrower and the Administrative Agent ~~an administrative questionnaire in which the Assignee designates~~ or (ii) such assignment is one of two or more ~~credit contacts~~ assignments being made simultaneously by or to ~~whom all syndicate-level information (which may contain material non-public information about~~ affiliated Assignees or Approved Funds, the Parent Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any sum of the ~~Loan Documents, no Lender shall be entitled, without the consent~~ aggregate principal amounts of ~~the Parent Borrower,~~ which is at least $3,000,000 with respect to ~~make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement~~ Revolving Credit Loans and $1,000,000 with respect to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureTranche C Term Loans. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a Revolving Credit Commitment and/or Loans and other interests as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party ~~hereto~~hereto except as to Sections 2.17, 2.18, 2.20 and 9.5 in respect of the period prior to such effective date). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Revolving Extensions of Credit and Tranche C Term Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Revolving Extensions of Credit, Tranche C Term Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated ~~Assignee, if~~ Assignee (to the extent requested by such designated Assignee), and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Revolving Extensions of Credit and Tranche C Term Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 payable by the Assignee thereof (treating multiple, simultaneous assignments by or to two or more Approved Funds as a single assignment) (except that no such registration and processing fee shall be payable in the case of an Assignee which is an affiliate or Approved Fund of such Lender, or a Person under common management with such Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Notes of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Tranche C Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Tranche C Term Loans, as the case may be, upon request, new Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Tranche C Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) ~~Each~~ nothing herein shall constitute a commitment by any SPC to make any Loan, (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof and (iii) the Granting Lender’s and the Borrower’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, the Granting Lender shall remain solely responsible for the performance thereof, and the Borrower, ~~each Lender~~ the Lenders and the ~~Administrative Agent each~~ Agents shall continue to deal solely and directly with such Granting Lender in connection with such Granting Lender’s rights and obligations under this Agreement and the other Loan Documents. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby ~~confirms~~ agrees that ~~it will not institute against a Conduit Lender or join~~ no SPC shall be liable for any ~~other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy~~ indemnity or similar ~~law~~payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, ~~for~~ 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 ~~the latest maturing~~ all outstanding commercial paper ~~note issued~~ or other 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 in this Section 9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan is held by any SPC, such SPC and the Granting Lender that would otherwise have been obligated to make such Loan shall agree between themselves as to which of them shall be entitled to grant or withhold any consent applicable to such Loan, but such Granting Lender shall communicate with the Administrative Agent and the Borrower as to the giving or withholding of such consent, and the parties to the Loan Documents shall be entitled to rely conclusively on the advice by such ~~Conduit Lender; provided, however, that each~~ Granting Lender ~~designating~~ as to whether such consent is being granted or withheld. This paragraph (g) may not be amended without the written consent of any ~~Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out~~ SPC with Loans outstanding at the time of ~~its inability to institute~~ such ~~a proceeding against such Conduit Lender during such period of forbearance~~proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (B&G Foods, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the ~~Administrative Agent~~Arranger, the Agents, all future holders of the Loans and Letters of Credit and their respective successors and assigns, except that ~~no Borrower~~ the Borrowers may not assign or nor transfer any of its respective rights or obligations under this Agreement without the prior written consent of the Arranger, the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without notice to, or the consent of, either of the Borrowers or any other ~~party to this Agreement~~Person, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement,~~ Agreement and the ~~Borrowers~~ other Loan Documents, the Borrowers, the Arranger and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower agrees~~ The Borrowers agree that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender hereunder. The Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also ~~agrees~~ agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.21 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, ~~all~~ at any time and from time to time assign to (1) any Lender or ~~a portion~~ (2) any affiliate or Related Fund of ~~its Loans and Revolving Commitments hereunder to an Eligible Assignee~~ the assigning Lender or of another Lender or Control Investment Affiliate thereof or, (~~an “Assignee”~~3) with the ~~consent~~consent of the Borrowers and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments, the written consent of the Issuing Lender (which, in each case, shall not to be unreasonably withheld or delayed, ) (provided (x) that no such consent need be obtained by a ▇▇▇▇▇▇ Entity for a period of 180 days following the Closing Date and (ay) the ~~Parent Borrower, unless (i)~~ consent of the ~~Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (~~Borrowers need not be obtained with respect to ~~a Borrower~~any assignment of Tranche B Term Loans), ~~has occurred and is continuing; provided that~~ to an additional bank, financial institution or other entity (each such ~~consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent~~assignee under (1), (b2) ~~the Administrative Agent,~~ or (3) an "Assignee") all or any part of its rights and ~~(c) each Issuing Lender, in each case~~ obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E (an "Assignment and Acceptance"), executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrowers, the Administrative Agent or the Issuing Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrowers and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000 for Revolving Credit Loans and $1,000,000 for Tranche B Term Loans or, after giving effect thereto, result in such assigning Lender having a Commitment and/or outstanding Loans in an aggregate amount of less than $5,000,000 for Revolving Credit Loans and $1,000,000 for Tranche B Term Loans (other than, in each case, in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed ~~that~~ by the Borrowers and the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrowers shall not be required for any ~~Conduit Lender may assign~~ assignment that occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent shall, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, ~~and~~ the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the Borrowers marked "canceled". The Register shall be available for inspection by either of the Borrowers or any Lender (with respect to any entry relating to such ~~Assignee~~Lender's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that (A) no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ▇▇▇▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is a Related Fund of a Lender or a Person under common management with a Lender and (B) in the case of assignments on the same day by a Lender to more than one fund managed or advised by the same investment advisor (which funds are not then Lenders hereunder), only a single $3,500 fee shall be payable for all such assignments by such Lender to such funds on such day), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrowers. On or prior to such effective ~~date determined~~ date, the Borrowers, at their own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to such Assignee or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Tranche B Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the Assignor or its registered assigns in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For the avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of either of Borrowers or the Administrative Agent, assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued by such fund, as security for such obligations or securities; provided that ~~the~~ any foreclosure ~~on any~~ or similar action by such ~~pledged Loan~~ trustee or representative shall be subject to the provisions ~~regarding restrictions on assignments contained in~~ of this Section ~~10.6~~10.6 concerning assignments. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Regal Entertainment Group)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement~~its commercial banking business, commercial lending or investment business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to Agreement and the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participationother Loan Documents. Each Borrower agrees that if amounts outstanding under this Agreement ~~and the Loans~~ are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 12.7(a) as fully as if it were a Lender hereunder. Each Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~5.10, ~~2.18~~ 5.11, and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 5.12 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~5.11, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender (an “Assignor”) shall be permitted to assign~~may, in the ordinary course of its commercial banking business, commercial lending or investment business and in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent, not to be unreasonably withheld or delayed,~~ consent of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent ~~for such consent,~~ and the Borrowers (~~b) the Administrative Agent, and (c) each Issuing Lender,~~ which in each case shall not be unreasonably withheld), to an additional bank or financial institution ("an Assignee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit N, with appropriate completions (an "Assignment and Acceptance"), executed by such Assignee, such ~~Assignor~~ assigning Lender (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Administrative Agent and ~~any other Person whose consent is required pursuant to this paragraph,~~ the Borrowers) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood~~ Register; provided, that no such assignment shall be permitted if the aggregate amount of the Loans, L/C Obligations and Available RC Commitments assigned shall be less than $5,000,000, unless otherwise agreed ~~that such Assignee, if it shall not be a Lender, shall deliver to~~ by 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or Loans~~ Commitments as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor’s~~ assigning Lender's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this paragraph (c) and paragraph (e) of this Section, the ~~foregoing~~consent of the Borrowers shall not be required, and, unless requested by the Assignee and/or the assigning Lender, new Notes shall not be required to be executed and delivered by the Borrowers, for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent of~~ when any ~~Borrower or the Administrative Agent any or all~~ of the ~~Loans it may~~ events described in Section 10(f) shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative ~~Agent shall~~Agent, on behalf of the Borrowers, shall maintain at ~~its~~ the address of the Administrative Agent referred to in Section ~~10.2~~ 12.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment~~ Commitments of, and ~~the~~ principal ~~amount (and stated interest)~~ amounts of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders ~~shall~~ may (and, in the case of any Loan or other obligation hereunder not evidenced by a Note, shall) treat each Person whose name is recorded in ~~each~~ the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing the Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on~~ available for inspection by the ~~relevant Register only~~ Borrowers or any Lender at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrowers and ~~any other Person whose consent is required by Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Borrowers. (f) Each Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in such Lender's possession concerning the Borrowers and their Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Borrowers pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Borrowers in connection with such Lender's credit evaluation of the Borrowers and their Affiliates prior to becoming a party to this Agreement. (g) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Celadon Group Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no (i) the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (cii) ~~below, respectively,~~ any attempted assignment or ~~pursuant to Section 2.23~~transfer by the Borrower without such consent shall be null and void. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~the Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a “Participant”) participating interests in any Loan owing to such Lender, ~~any Revolving~~ the Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~▇▇▇▇▇▇’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ described in clause (w) of the ~~final maturity of the Loans~~proviso to Section 8.1 that affects such Participant, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 8.7 as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 (and subject to the ~~requirements and~~ limitations ~~therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)~~thereof) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of ~~said~~ Section 2.14 (including the requirements under Sections 2.14(e), 2.14(f) and 2.14(g) (it being understood that the documentation required under Sections 2.14(e), 2.14(f) and 2.14(g) shall be delivered to the participating Lender)) as if it ~~were~~ was a ~~Lender~~ Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to ~~any such Section~~ Sections 2.12, 2.13 or 2.14 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent such entitlement to ~~pay any~~ receive a greater ~~amount pursuant~~ payment results from a Change in Law made subsequent to ~~Section 2.18 as a result of~~ the ~~transfer of a participation to a~~ Closing Date that occurs after the Participant ~~than such Loan Party would have been required to pay absent such transfer~~acquired the applicable participation. Each Lender that sells a participation shall, acting ~~solely for this purpose~~ as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~commitments, loans, letters of credit~~ Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such ~~commitment~~Commitment, ~~loan, letter of credit~~ or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income TaxRegulations. The entries in the Participant Register shall be ~~conclusive absent~~ conclusive, in the absence of manifest error, and such ~~Lender~~ Lender, each Loan Party and the Administrative Agent shall treat each ~~Person~~ person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Person (other than the Borrower or ~~a portion~~ any of its ~~Loans and Revolving Commitments hereunder to~~ Affiliates or an ~~Eligible Assignee~~ Ineligible Institution) (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided ~~that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without~~ that (i) the consent of the ~~Parent Borrower~~Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and in the case of the Borrower shall be deemed to ~~make~~ have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this ~~Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ Agreement. For purposes of the ~~date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower~~ proviso contained in the ~~foreseeable future~~preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any~~ the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~8.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 8.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan~~Loan or Commitment, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Commitment evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such ~~Loan~~Loan or Commitment, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~8.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000 (such fee not payable with respect to assignments to an Assignor’s Affiliate and such fee not to be payable by the Borrower, except for an assignment pursuant to Section 2.18), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) ~~For avoidance~~ Any Lender may at any time pledge or assign a security interest in all or any portion of ~~doubt the parties to~~ its rights under this Agreement ~~acknowledge that the provisions~~ to secure obligations of ~~this Section 10.6 concerning assignments relate only to absolute assignments and that~~ such ~~provisions do not prohibit the granting of security~~Lender, including any pledge or assignment by to secure obligations to a ~~Lender to any~~ Federal Reserve ~~Bank in accordance with applicable law~~Bank; provided that ~~the foreclosure on~~ no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant ~~Lender~~▇▇▇▇▇▇, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (ih) Each of the Borrower, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Revolving Credit Agreement (Bungeltd)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of Holdings, the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Term Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of ~~its~~ their rights or obligations under this Agreement except in a transaction permitted pursuant to Section 6.4(a)(i)(x) without the prior written consent of the Administrative Agent and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Term Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents; provided, however, no Lender shall be permitted to sell any such participating interest to (i) any of the Fortress Funds, any of their respective Affiliates (other than any Affiliated Loan Fund) or any of their respective associated investment funds, (ii) a natural person or (iii) any Disqualified Assignee. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and the Borrowers and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreementa 1. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each The Borrower agrees that if amounts outstanding under this Agreement and the Term Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ; provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 9.7(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled through the Lender granting the participation to the benefits of Sections ~~2.17~~2.19, ~~2.18 and 2.19~~ 2.20 or 2.21 (~~and~~ subject to the requirements and limitations ~~therein~~of such Sections, Section 2.22 and 2.24, including the requirements ~~under~~ of Section ~~2.18(f~~2.21(d) through (g) (it being ~~understood~~ agreed that ~~the documentation~~ any required ~~under Section 2.18(f)~~ forms shall be ~~delivered~~ provided solely to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Term Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further,~~ that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent that entitlement to ~~pay any~~ a greater amount ~~pursuant to Section 2.18 as~~ results from a ~~result of~~ change in Law that occurs after such Participant acquires the applicable participation, unless such transfer ~~of a participation to a Participant than such Loan Party would have been required to pay absent such transfer~~was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal and interest amounts ~~(and stated interest)~~ of each Participant’s interest in the Term Loans ~~or other obligations under the Loan Documents~~ held by it (the “Participant Register”)~~; provided that no~~ . 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 the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of ~~the~~ a Participant Register ~~to any Person~~ (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent ~~that~~ such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations ~~or, in the case of any Canadian Borrower,~~ and to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining confirm a Participant ~~Register~~is not a Disqualified Institution. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed, ~~all~~ and which consent shall not be required in connection with an assignment made by or ~~a portion~~ to the Arranger) (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made by or to the Arranger) and, so long as no Event of ~~its Loans~~ Default under Section 7.1(a) or (f) has occurred and ~~Revolving Commitments hereunder~~ is continuing, the Borrower (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made to or, in connection with the primary syndication of the Facility (other than assignments to any Disqualified Assignee), by the Arranger) (provided that the Borrower shall be deemed to have consented to any such assignment unless they shall object thereto by written notice to the Administrative Agent within five Business Days after having received notice thereof), at any time and from time to time assign to any Lender or any affiliate, Related Fund or Control Investment Affiliate thereof, to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption,~~ Acceptance executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose consent is required pursuant to this paragraph,~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that assignments made to any Lender, an affiliate of a Lender or a Related Fund will not be subject to the above described consents; provided, further, that no assignment to an Assignee (~~it being understood and agreed that such Assignee~~other than any Lender or any affiliate thereof) of Term Loans shall be in an aggregate principal amount of less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Term Loan Facility under this Agreement) and, after giving effect thereto, the assigning Lender (if it shall ~~not be a Lender,~~ retain any Term Loans) shall ~~deliver to~~ have Term Loans aggregating at least $1,000,000 unless otherwise agreed by the Administrative Agent ~~an administrative questionnaire in which~~ and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable lawsBorrower; provided, ~~including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents~~however, no Lender shall be ~~entitled, without the consent~~ permitted to assign all or any part of ~~the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost~~ its rights and obligations under this Agreement to (i) any ~~Borrower, including without limitation under Section 2.17 or 2.18, as~~ of the ~~date~~ Fortress Funds, any of ~~such assignment~~ their respective Affiliates or ifany of their respective associated investment funds (other than Holdings, as the Borrower or any of their respective Subsidiaries), unless the ~~date~~ additional limitations set forth in Section 9.6(d) are satisfied, (ii) Holdings, the Borrower or any of ~~such assignment~~their respective Subsidiaries, ~~such assignment would increase the cost under this Agreement~~ except pursuant to Borrower Loan Purchase made in accordance with Section 9.6(i), (iii) any ~~Borrower in the foreseeable future~~natural person or (iv) any Disqualified Assignee. Upon such execution, delivery, acceptance and recording in the ~~Register pursuant to Section 10.6(d)~~Register, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment~~ Commitments and/or Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.20, 2.21 and 9.5 in respect of the period prior to such effective date). For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. Any assignment or participation to a Disqualified Assignee is void ab initio unless such assignment or participation, as the case may be, has been approved by the Borrower, in which case such assignee or participant shall not be considered a Disqualified Assignee solely for such particular assignment or participation, as the case may be. In the case of an assignment not approved by the Borrower, such Disqualified Assignee shall be deleted from the Register upon written notification from the Borrower. Except for providing the list of Disqualified Assignees to each Lender, the Administrative Agent shall have no responsibility or liability to monitor or enforce such list of Disqualified Assignees. (d) Notwithstanding anything in this Agreement or any other Loan Document to the ~~foregoing~~contrary, any ~~Conduit~~ Lender may assign at all or a portion of its Term Loans to any ~~time to its designating Lender hereunder without~~ of the ~~consent~~ Fortress Funds or any of their respective Affiliates or any of their respective associated investment funds, other than Holdings, the Borrower or any of their respective Subsidiaries (an “Affiliated Lender”), pursuant to an Affiliated Lender Assignment and Assumption in accordance with this Section 9.6(d) (which assignment will not constitute a prepayment of Term Loans for any purposes of this Agreement and the other Loan Documents); provided that: (i) Affiliated Lenders (other than Affiliated Loan Funds) will not have the right to receive, and will not receive, information provided solely to Lenders by the Administrative Agent or any Lender and will not be permitted to, and will not, attend or ~~all~~ participate in meetings or conference calls attended solely by the Lenders and the Administrative Agent, other than the right to receive notices of prepayments and other administrative notices in respect of its Term Loans required to be delivered to the Lenders; (ii) notwithstanding anything in Section 9.1 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the “Required Lenders” have (A) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of this Agreement or any other Loan Document or any departure by any Loan Party therefrom, (B) otherwise acted on any matter related to this Agreement or any other Loan Document or (C) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under this Agreement or any other Loan Document, all Term Loans it held by any Affiliated Lender (other than Affiliated Loan Funds) shall be deemed to have voted in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders for all purposes of calculating whether the Required Lenders have taken any actions, and each Affiliated Lender (other than Affiliated Loan Funds) hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Affiliated Lender’s attorney-in-fact, with full authority in the place and stead of such Affiliated Lender and in the name of such Affiliated Lender, from time to time in the Administrative Agent’s discretion to take any action and to execute any instrument that the Administrative Agent may ~~have funded hereunder and pursuant~~ deem reasonably necessary to ~~its designation agreement and without regard~~ carry out the provisions of this clause (ii). Affiliated Loan Funds shall not be subject to the limitations set forth in ~~the first sentence of~~ this ~~Section 10.6(c~~clause (ii)., and shall be entitled to vote as any other Lender; (diii) ~~The~~ the aggregate principal amount of Term Loans held at any one time by Affiliated Lenders (other than Affiliated Loan Funds) may not exceed 20% of the then outstanding principal amount of all Term Loans, and any assignments that cause the Affiliated Lenders (other than Affiliated Loan Funds) in the aggregate to exceed such percentages, as applicable, shall be deemed void ab initio and the Register shall be modified to reflect a reversal of such assignment; (iv) each of the parties hereto and any Lender participating in any assignment to an Affiliated Lender acknowledge and agree that in connection with such assignment, (A) the assignee then may have, and later may come into possession of Excluded Information, (B) such Lender has, independently and without reliance on such Affiliated Lender, any of its Subsidiaries, the Administrative Agent ~~shall~~or any of its affiliates, ~~on behalf~~ made its own analysis and determination to participate in such assignment notwithstanding such Lender’s lack of knowledge of the ~~Borrowers~~Excluded Information, ~~maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register~~ (~~each, a “Register”~~C) ~~for the recordation~~ none of the ~~names and addresses~~ Affiliated Lenders or any of its Subsidiaries, the ~~Lenders and the Revolving Commitment of~~Administrative Agent or any of its affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the ~~principal amount (and stated interest)~~ extent permitted by law, any claims such Lender may have against such Affiliated Lender, any of ~~the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers~~its Subsidiaries, the Administrative Agent and ~~the Lenders shall treat each Person whose name is recorded in each Register as the owner~~ any of ~~the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan~~its affiliates, ~~whether~~ under applicable laws or ~~not evidenced by a Note~~otherwise, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to ~~such assignment is delivered~~ the nondisclosure of the Excluded Information and (D) the Excluded Information may not be available to the Administrative ~~Agent) shall not be less than~~ Agent or the other Lenders; (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1v) no ~~such consent of the Parent Borrower shall be required if an~~ Event of Default ~~under Section 8(a) or 8(b), or Section 8(h) or 8(i)~~ has occurred and is continuing ~~and~~ at the time of such assignment to an Affiliated Lender (2other than an Affiliated Loan Fund) or would result from such ~~amounts~~ assignment; and (vi) each Affiliated Lender, solely in its capacity as a Lender, hereby further agrees that if any Loan Party shall be ~~aggregated~~ subject to any voluntary or involuntary proceeding commenced under any Debtor Relief Law, each such Affiliated Lender shall be deemed to have voted in such proceeding in the same proportion as the allocation of voting with respect ~~of each Lender and its Lender Affiliates or Conduit~~ to such proceeding by those Lenders who are not Affiliated Lenders, ~~if any~~except to the extent that any matter under such proceeding proposes to treat the Obligations of the Loan Parties under the Loan Documents held by such Affiliated Lender in a manner that is less favorable to such Affiliated Lender in any material respect than the proposed treatment of similar Obligations of the Loan Parties under the Loan Documents held by other Lenders. Each Affiliated Lender agrees and acknowledges that the foregoing constitutes an irrevocable proxy in favor of the Administrative Agent to vote or consent on behalf of such Affiliated Lender in any proceeding in the manner set forth above; provided that any Affiliated Lender that qualifies as an Affiliated Loan Fund shall not be subject to the limits set forth in this Section 9.6(d)(vi). (fe) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (provided, however, that (i) Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment and (ii) no such fee shall be required to be paid (A) in connection with an assignment by or to the Arranger or any Affiliate thereof or (B) in the case of an Assignee which is already a Lender or any affiliate, Related Fund or Control Investment Affiliate thereof), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the applicable Term Loan Notes of the assigning Lender) a new Term Loan Note to the order of such Assignee in an amount equal to the Term Loans assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained Term Loans, upon request, a new Term Loan Note to the order of the Assignor in an amount equal to the Term Loans retained by it hereunder. Such new Term Loan Note or Term Loan Notes shall be dated the Closing Date and shall otherwise be in the form of the Term Loan Note or Term Loan Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments ~~relate only to absolute assignments and that such provisions do not prohibit the granting~~ of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.Te

Appears in 1 contract

Sources: Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no (i) the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (cii) ~~below, respectively,~~ any attempted assignment or ~~pursuant to Section 2.23~~transfer by the Borrower without such consent shall be null and void. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~the Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (other than the Borrower or any of its Affiliates or an Ineligible Institution) (each, a “Participant”) participating interests in any Loan owing to such Lender, ~~any Revolving~~ the Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~▇▇▇▇▇▇’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ described in clause (w) of the ~~final maturity of the Loans~~proviso to Section 8.1 that affects such Participant, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 8.7 as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.10, ~~2.18~~ 2.11 and ~~2.19~~ 2.12 (and subject to the ~~requirements and~~ limitations ~~therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)~~thereof) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.11, such Participant shall have complied with the requirements of ~~said~~ Section 2.11) (including the requirements under Sections 2.11(e), 2.11(f) and 2.11(g) (it being understood that the documentation required under Sections 2.11(e), 2.11(f) and 2.11(g) shall be delivered to the participating Lender)) as if it ~~were~~ was a ~~Lender~~ Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to ~~any such Section~~ Sections 2.9, 2.10 or 2.11 (as the case may be) than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~. For~~ , except to the ~~avoidance of doubt, no Loan Party shall be required~~ extent such entitlement to ~~pay any~~ receive a greater ~~amount pursuant~~ payment results from a Change in Law made subsequent to ~~Section 2.18 as a result of~~ the ~~transfer of a participation to a~~ First Amendment and Restatement Effective Date that occurs after the Participant ~~than such Loan Party would have been required to pay absent such transfer~~acquired the applicable participation. Each Lender that sells a participation shall, acting ~~solely for this purpose~~ as a non-fiduciary agent on behalf of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under ~~the Loan Documents~~ this Agreement (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~commitments, loans, letters of credit~~ Commitments or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such ~~commitment, loan, letter of credit~~ Commitment or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income TaxRegulations. The entries in the Participant Register shall be ~~conclusive absent~~ conclusive, in the absence of manifest error, and such ~~Lender~~ Lender, each Loan Party and the Administrative Agent shall treat each ~~Person~~ person whose name is recorded in the Participant Register pursuant to the terms hereof as the owner of such participation for all purposes of this ~~Agreement~~ Agreement, notwithstanding ~~any~~ notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Person (other than the Borrower or ~~a portion~~ any of its ~~Loans and Revolving Commitments hereunder to~~ Affiliates or an ~~Eligible Assignee~~ Ineligible Institution) (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Loan Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided ~~that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without~~ that (i) the consent of the ~~Parent Borrower~~Borrower and the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed, and in the case of the Borrower shall be deemed to ~~make~~ have been given if the Borrower has not responded to a proposed assignment within ten (10) Business Days following its receipt of notice of such proposed assignment) shall be required in the case of any assignment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower shall not be required for any assignment that occurs when either a Default or an Event of Default shall have occurred and be continuing) and (ii) unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this ~~Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as~~ Agreement. For purposes of the ~~date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower~~ proviso contained in the ~~foreseeable future~~preceding sentence, the amount described therein shall be aggregated in respect of each Lender and its Lender Affiliates, if any. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any~~ the Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~8.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 8.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time, which Register shall be made available to the Borrower and any Lender upon reasonable request. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan~~Loan or Commitment, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Commitment evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such ~~Loan,~~ Loan or Commitment accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~8.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000 (such fee not payable with respect to assignments to an Assignor’s Affiliate and such fee not to be payable by the Borrower, except for an assignment pursuant to Section 2.15), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) ~~For avoidance~~ Any Lender may at any time pledge or assign a security interest in all or any portion of ~~doubt the parties to~~ its rights under this Agreement ~~acknowledge that the provisions~~ to secure obligations of ~~this Section 10.6 concerning assignments relate only to absolute assignments and that~~ such ~~provisions do not prohibit the granting of security~~Lender, including any pledge or assignment by to secure obligations to a ~~Lender to any~~ Federal Reserve ~~Bank in accordance with applicable law~~Bank; provided that ~~the foreclosure on~~ no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) ~~Each~~ The Borrower, upon receipt of written notice from the relevant ~~Lender~~▇▇▇▇▇▇, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (gf) above. (ih) Each of the Borrower, each Lender and the Administrative Agent ~~each hereby~~ ▇▇▇▇▇▇ confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Term Loan Agreement (Bungeltd)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or financial institutions (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Syndication Agent, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of the Borrower, the Issuing Lender, (in the case of assignments of Revolving Credit Commitments only) and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed, ) (provided (x) that no such consent need be obtained by ▇▇▇▇▇▇ Commercial Paper Inc. for a period of 180 days following the Closing Date and (ay) the ~~Parent Borrower, unless (i)~~ consent of the ~~Assignee is a~~ Issuing Lender ~~or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (~~and the Borrower need not be obtained with respect to ~~a Borrower~~any assignment of Term Loans), ~~has occurred~~ to an additional bank, financial institution or other entity (an "Assignee") all or any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower, the Agents or the Issuing Lender is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood~~ other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000, and after giving effect thereto, the assigning Lender shall have Commitments and Loans aggregating at least $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed ~~that~~ by the Borrower, the Syndication Agent and the Administrative Agent. Any such ~~Assignee, if it shall~~ assignment need not be ~~a Lender, shall deliver to~~ ratable as among 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section, the ~~foregoing,~~ consent of the Borrower shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by ~~such Assignee~~the Administrative Agent to the Borrower marked "cancelled". The Register shall be available for inspection by the Borrower or any Lender or any Agent at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation, to the Lenders, the Agents and the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (hg) Each ~~Borrower, upon receipt of written notice from the relevant~~ Lender, ~~agrees to issue Notes to any~~ by becoming a Lender ~~requiring Notes to facilitate transactions~~ hereunder, represents that it is a financial institution regulated by a Governmental Authority of the ~~type described in paragraph (g) above. (i) Each Borrower~~United States or a State thereof, ~~each Lender and the Administrative Agent each hereby confirms that it will not institute against~~ or is a ~~Conduit Lender~~ wholly-owned subsidiary of, or ~~join any other Person in instituting against a Conduit Lender any bankruptcy~~is managed by, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a ~~proceeding against such Conduit Lender during such period of forbearance~~financial institution.

Appears in 1 contract

Sources: Credit Agreement (Powerhouse Technologies Inc /De)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Borrower, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and ~~the Borrowers~~ Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each~~ Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.15 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18,~~ 2.14 such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.-76- 82 (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee (an “Assignee”)~~ any affiliate thereof or, with the ~~consent~~consent of Borrower and the Administrative Agent (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b~~), to an additional bank, financial institution or ~~8(h~~other entity (an "Assignee") all or ~~8(i) (with respect to a Borrower), has occurred~~ any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood and agreed that such Assignee, if it~~ other than any Lender or any affiliate thereof) shall ~~not~~ be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender~~, shall deliver to~~ 's interests under this Agreement) unless otherwise agreed by Borrower and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding ~~the foregoing~~any provision of this Section 10.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of Borrower shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing with respect to Borrower. On or prior to the date of any assignment to an Assignee that is not already a Lender hereunder pursuant to this Section, such Assignee shall deliver to Borrower or and the Administrative Agent ~~any~~ certification as to exemption from deduction or ~~all~~ withholding of ~~the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth~~ taxes in ~~the first sentence of this~~ accordance with Section ~~10.6(c)~~2.14. (d) The Administrative Agent shall, on behalf of ~~the Borrowers~~Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record -77- 83 the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Lifepoint Hospitals Holdings Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of each of the ~~Borrowers~~Loan Parties, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that no ~~Borrower~~ Loan Party may assign or transfer (other than in connection with a merger, liquidation or consolidation permitted by Section 7.5) any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its commercial banking business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a~~ “~~Participant~~Participants”) participating interests in any Loan owing to such ~~Lender,~~ Lender any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents, provided, that the amount of the Commitment sold to such Participant pursuant to such participation (determined as of the date of the Assignment and Assumption with respect to such participation) shall not be less than $2,500,000. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan (and any Note evidencing such Loan) for all purposes under this ~~Agreement,~~ Agreement and the ~~Borrowers~~ other Loan Documents, the Borrower and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement. In~~ Agreement and the other Loan Documents and such Participant shall have no ~~event shall any Participant under any such participation have any~~ right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or ~~any~~ to consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would extend the maturity of or reduce the principal of, or interest on, the Loans or any fees payable hereunder, ~~or postpone the date of the final maturity of the Loans,~~ in each case to the extent subject to such participation. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant ~~shall, to the maximum extent permitted by applicable law,~~ shall be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 10.7(a) as fully as if it were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.14 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.15 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section; and provided, further, that ~~no Participant~~ the Borrower shall not be ~~entitled~~ required to ~~receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive~~ pay, in respect of the amount of the participation transferred by such transferor Lender to such ~~Participant had no such transfer occurred. For the avoidance of doubt~~Participant, ~~no Loan Party shall be required to pay~~ any greater amount pursuant to ~~Section 2.18 as a result of~~ any such subsections than the ~~transfer of a participation to a Participant than such Loan Party~~ Borrower would have been required to pay ~~absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent~~ in respect of the ~~Borrower, maintain a register on which it enters the name and address~~ amount of ~~each Participant and the principal amounts (and stated interest) of each Participant’s interest in~~ the Loans ~~or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation~~ subject to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation ~~for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have~~ had no ~~responsibility for maintaining a Participant Register~~such transfer occurred. (c) Any Lender ~~other than any Conduit Lender~~ may assign to one or more assignees (an “~~Assignor~~Assignee”) ~~shall be permitted to assign, in accordance with applicable law,~~ all or a portion of its rights and obligations under this Agreement and the Loan Documents (including all or a portion of its Commitment and the Loans ~~and Revolving Commitments hereunder~~ at the time owing to ~~an Eligible Assignee (an “Assignee”~~it) with the ~~consent,~~ prior written consent (such consent not to be unreasonably ~~withheld or delayed,~~ withheld) of (a) the ~~Parent~~ Borrower, ~~unless (i)~~ provided that no consent of the ~~Assignee is~~ Borrower shall be required for an assignment to a Lender or a Lender Affiliate ~~or (ii)~~ or, if an Event of Default ~~under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower),~~ has occurred and is continuing~~; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent~~, any other Assignee, and (b) the Administrative ~~Agent,~~ Agent and (c) ~~each~~ the Issuing Lender, ~~in each case~~ pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit F, executed by such Assignee, such ~~Assignor~~ assigning Lender, the Administrative Agent and ~~any other Person whose consent~~ the Issuing Lender (and, in the case of an Assignee that is ~~required pursuant to this paragraph~~not then a Lender or a Lender Affiliate, by the Borrower, unless an Event of Default has occurred and is continuing) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed~~ Register, provided, that ~~such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any amount of the ~~Loan Documents, no Lender shall be entitled, without the consent~~ Revolving Credit Commitment of the ~~Parent Borrower,~~ assigning Lender assigned pursuant to ~~make an assignment under this Section 10.6(c) if~~ such assignment ~~would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18,~~ (determined as of the date of ~~such assignment or if, as of~~ the ~~date of~~ Assignment and Assumption with respect to such assignment~~, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future~~) shall not be less than $2,500,000. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment ~~and/or Loans~~ as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all or the remaining portion of an ~~Assignor~~assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all of the Loans it may hereto and shall have ~~funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ no further rights except as set forth in the ~~first sentence of this Section 10.6(c~~Assignment and Acceptance). (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, and Notes, if any, evidencing such Loans held by, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Loan recorded therein for all purposes of this Agreement. ~~Any assignment of any Loan, whether or not evidenced by a Note,~~ The Register shall be ~~effective only~~ available for inspection by the Borrower or any Lender at any reasonable time and from time to time upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee ~~and any other Person whose consent~~ (and, in the case of an Assignee that is ~~required~~ not then a Lender or an affiliate thereof, by ~~Section 10.6(c),~~ the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$~~$3,500, the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective date, the Borrower, at its own expense, shall, upon receipt of a written request from the Assignee, execute and deliver to the Administrative Agent a Note to the order of such Assignee in an amount equal to the Commitment assumed by it pursuant to such Assignment and Acceptance and, if the assigning Lender has retained a Commitment hereunder and so requests it, a replacement Note to the order of the assigning Lender in an amount equal to the Commitment retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and otherwise shall be in the form of Exhibit A or Exhibit B hereto. The Note or Notes surrendered by the assigning Lender shall be returned by the Administrative Agent to the Borrower marked “cancelled”. (f) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee (subject to the provisions of Section 10.16 hereof) any and all financial information in such Lender’s possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the ~~effective date determined~~ Borrower pursuant ~~thereto~~to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement. (g) ~~For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not~~ Nothing herein shall prohibit ~~the granting of security~~any Lender from pledging or assigning any Note, ~~including any pledge or assignment by a Lender~~ together with its rights hereunder, to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Credit Agreement (Landstar System Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders, the Administrative ~~Agent, all future holders of the Loans~~ Agent and their respective successors and assigns, except that no Borrower may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (~~except for any assignment by~~ other than pursuant to subsections 4.5 and 5.9 or pursuant to a ~~Canadian Borrower, a Spanish Borrower or a Swedish Borrower as~~ transaction permitted by ~~Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in~~ paragraphs (ba) ~~and~~ through (c) ~~below, respectively, or pursuant to Section 2.23~~of subsection 14.4). (b) Any Lender ~~other than any Conduit Lender~~ may, ~~without~~ in the ~~consent~~ ordinary course of ~~any other party to this Agreement,~~ its business and in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Credit Documents; provided that (unless the Primary Borrower and the Administrative Agent otherwise consent in writing) (y) no such participating interests shall be in an aggregate principal amount of less than $5,000,000 in the aggregate (or, if less, the full amount of such selling Lender's Loans and Commitments) and (z) in the case of a participating interest in the German Term Loan, such Participant is an Eligible German Bank. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Credit Documents, and the ~~Borrowers~~ Credit Parties and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Credit Documents. ~~In no event~~ Any agreement pursuant to which any Lender shall ~~any Participant under~~ sell any such ~~participation have any~~ participating interest shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender's rights and enforce each of the relevant Borrower's obligations hereunder, including the right to ~~approve~~ consent to any ~~amendment~~ amendment, supplement, modification or waiver of any provision of this ~~Agreement,~~ Agreement or any of the other Credit Documents, and no Lender shall be entitled to create in favor of any Participant, in the participation agreement pursuant to which such Participant's participating interest shall be created or otherwise, any right to vote on, consent to or approve any ~~departure by~~ matter relating to this Agreement or any ~~Borrower therefrom~~other Credit Document, ~~except to the extent~~ provided that such participation agreement may provide that, without the consent of the Participant, such Lender will not agree to any amendment, ~~waiver~~ supplement, modification or ~~consent would reduce the principal of~~waiver, specified in subsection 17.1(e) or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant(f). Each Borrower also agrees that each ~~Participant~~ Lender shall be entitled to the benefits of ~~Sections 2.17~~subsections 9.14, ~~2.18~~ 9.15 and ~~2.19 (~~9.16 without regard to whether it has granted any participating interests, and ~~subject~~ that all amounts payable to ~~the requirements~~ a Lender under subsections 9.14, 9.15 and ~~limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f)~~ 9.16 shall be ~~delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time~~ determined as if ~~it was~~ such Lender had not granted any such participating interests. (i) Any Lender (other than a German Term Loan Lender~~; provided that~~) may, in the ~~case~~ ordinary course of ~~Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender~~ its business and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) shall be permitted to assign, in accordance with applicable law, ~~all~~ at any time and from time to time assign to (A) any Lender or any Affiliate thereof that is a ~~portion of its Loans and Revolving Commitments hereunder to an Eligible Assignee~~ Permitted Affiliate Transferee (~~an “Assignee”~~as hereinafter defined), or (B) with the ~~consent,~~ consent of the Administrative Agent (which shall not to be unreasonably ~~withheld~~ withheld), to any Related Fund or ~~delayed~~(C) with the consent of the Administrative Agent and the Primary Borrower (which, in each case, shall not be unreasonably withheld), to any additional bank or financial institution and (ii) any German Term Loan Lender may, in the ordinary course of ~~(a)~~ its business and in accordance with applicable law, with the ~~Parent~~ consent of the Primary Borrower, ~~unless~~ the Administrative Agent and the German Term Loan Servicing Bank (which, in each case, shall not be unreasonably withheld) at any time and from time to time assign to any Eligible German Bank (any assignee described in clause (i) ~~the Assignee is a Lender or a Lender Affiliate~~ or (ii~~) an Event of Default under Section 8(a) or 8(b~~), an "Assignee") all or ~~8(h) or 8(i) (with respect to a Borrower), has occurred~~ any part of its rights and ~~is continuing; provided that such consent shall be deemed given if~~ obligations under this Agreement and the ~~Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case~~ other Credit Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit D, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no assigning Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable future. Upon such execution, delivery, acceptance and recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an ~~Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement~~Assignee that is not then a Permitted Affiliate Transferee, ~~such Assignor shall cease to be a party hereto). Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or~~ by the Administrative Agent ~~any or all of~~ and, to the ~~Loans it may have funded hereunder and~~ extent required pursuant to ~~its designation agreement~~ subclause (i)(C) or clause (ii) above, by the Primary Borrower and ~~without regard~~ to the ~~limitations set forth in~~ extent required pursuant to clause (ii) above, by the ~~first sentence of this Section 10.6(c). (d) The Administrative Agent shall~~German Term Loan Servicing Bank, on behalf of the Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in each Register shall constitute prima facie evidence of the same, in the absence of manifest error, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in each Register as the ~~owner of the Loans~~ case may be) and any Notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative ~~Agent~~Agent or the German Term Loan Servicing Bank, as the case may be, for its acceptance and recording in the Register, provided that (u) any assignment of a Revolving Credit Commitment shall require the consent of the Domestic L/C Issuing Bank, and any assignment of the German L/C Participation Commitment shall require the consent of the German L/C Issuing Bank, (v) unless the Primary Borrower, the German Term Loan Servicing Bank and the Administrative Agent otherwise consent in writing, any assignment of a German Term Loan by a German Term Loan Lender (A) shall be of all rights and obligations of such Lender under this Agreement and the other Credit Documents and (B) at any time after a change in law or regulation has made the exception described in chapter 23 of the German revenue ruling on section 8a of the German Corporate Revenue Code (or any successor provision of applicable law) inapplicable, may not ~~be less than~~ result in interest payments in respect of such German Term Loans becoming non- deductible (xwithout regard to any debt-equity safe harbor) for German income tax purposes, (w) in the case of an any such assignment which is not to a Permitted Affiliate Transferee, the sum (without duplication) of ~~Revolving Commitments, US$5,000,000 or (y) in~~ the ~~case~~ aggregate principal amount of ~~an assignment of~~ the Loans, ~~US$5,000,000~~the aggregate amount of the Domestic L/C Obligations, ~~C$5,000,000 or €5,000,000, as applicable, in each case unless~~ the ~~Parent Borrower~~ aggregate amount the German L/C Participation Commitment and the ~~Administrative Agent otherwise consent, provided that (1) no such consent~~ aggregate amount of the ~~Parent Borrower shall be required~~ Available Revolving Credit Commitment being assigned is not less than $5,000,000 (or, if ~~an Event~~ less, the full amount of ~~Default under Section 8(a) or 8(b~~such selling Lender's Loans and Commitments), or ~~Section 8(h) or 8(i) has occurred and is continuing and (2)~~ such ~~amounts shall~~ lesser amount as may be ~~aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed~~ agreed to by ~~an Assignor, an Assignee and any other Person whose consent is required by Section 10.6(c), together with payment to~~ the Administrative Agent of a registration and processing fee of US$3,500, the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) record the information contained therein in the relevant Register on the effective date determined pursuant thereto. (g) For avoidance of doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit the granting of security, including any pledge or assignment by a Lender to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.100

Appears in 1 contract

Sources: Credit Agreement (Dynatech Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Borrower, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that no the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Borrower, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, ~~any Revolving Commitment of such Lender~~ or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Borrower and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by ~~any~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~reduce~~ require the ~~principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date~~ consent of ~~the final maturity of the Loans, in each case~~ all Lenders pursuant to ~~the extent subject to such participation~~Section 9. 1. ~~Each~~ The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of~~ Section 9.7(a) as fully as if such ~~Participant~~Participant were a Lender hereunder. ~~Each~~ The Borrower also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.16 with respect to ~~its participation in the Revolving Commitments and~~ the Loans outstanding from time to time as if ~~it was~~ such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said ~~Section as if it were a Lender~~ Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, ~~all~~ at any time and from time to time assign to any Lender or ~~a portion~~ any affiliate, any Agent or any affiliate, Approved Fund or Control Investment Affiliate thereof or, with the consent of ~~its Loans~~ the Borrower and ~~Revolving Commitments hereunder~~ the Administrative Agent (which consent shall not be unreasonably withheld or delayed), to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit D, executed by such ~~Assignee,~~ Assignee and such Assignor ~~and any other Person whose~~ (and, where the consent of the Borrower or Administrative Agent is required pursuant to ~~this paragraph~~the foregoing provisions, by the Borrower and the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an Assignee (~~it being understood and agreed that such Assignee~~other than to any Lender or any affiliate, ~~if it~~ any Agent or any affiliate, Approved Fund or Control Investment Affiliate thereof) shall be in an aggregate principal amount of less than $1,000,000, and, after giving effect thereto, the Assignor shall hold Loans in an aggregate principal amount of not be less than $1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), ~~shall deliver to~~ in each case, unless otherwise agreed by the Borrower and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureAgent. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~a Revolving Commitment and/or~~ Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Section 2.14, 2.15 and 9.5 in respect of the period prior to such effective date). ~~Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the Administrative Agent any or all~~ For purposes of the ~~Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations~~ minimum assignment amounts set forth in ~~the first sentence of~~ this ~~Section 10.6(c)~~paragraph, multiple assignments by two or more Approved Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving Commitment of, and the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any Notes evidencing ~~the~~ such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption, and~~ Acceptance; thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated Assignee, ~~if requested~~ and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such ~~Assignee~~Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an a duly completed Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ Assignor and an Assignee ~~and~~ (and, in any case where the consent of any other Person ~~whose consent~~ is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (treating multiple, simultaneous assignments by or to two or more Approved Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ▇▇▇▇▇▇ Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant~~ Register on and give notice of such acceptance and recordation to the Borrower. On or prior to such effective ~~date determined~~ date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Note of the assigning Lender) a new Note to the order of such Assignee in an amount equal to the Loan assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the Assignor has retained a Loan upon request, a new Note to the order of the Assignor in an amount equal to the Loan retained by it hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests in Loans and Notes, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each ~~Borrower~~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 Lender). In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees (which agreement shall survive the ~~Administrative Agent each hereby confirms~~ termination of this Agreement) that, prior to the date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of ~~the latest maturing~~ all outstanding commercial paper ~~note issued by~~ or other indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such ~~Conduit Lender; provided~~SPC any bankruptcy, ~~however~~reorganization, ~~that each Lender designating~~ arrangement, insolvency or liquidation proceedings under the laws of the United States or any ~~Conduit Lender hereby agrees~~ state thereof. In addition, notwithstanding anything to ~~indemnify~~the contrary in this Section 9.6(g), ~~save~~ any SPC may (A) with notice to, but without the prior written consent of, the Borrower and ~~hold harmless each other party hereto for~~ the Administrative Agent and without paying any ~~loss~~processing fee therefor, ~~cost, damage~~ assign all or ~~expense arising out~~ a portion of its ~~inability~~ interests in any Loans to ~~institute~~ the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a ~~proceeding against~~ confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such ~~Conduit~~ SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan is held by any SPC, such SPC and the Granting Lender ~~during~~ that would otherwise have been obligated to make such ~~period~~ Loan shall agree between themselves as to which of ~~forbearance~~them shall be entitled to grant or withhold any consent applicable to such Loan, and the other parties to the Loan Documents shall be entitled to rely conclusively on the advice of such Granting Lender as to which of such Granting Lender or such SPC is entitled to grant or withhold such consent. This paragraph (g) may not be amended without the written consent of any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Magellan Midstream Holdings Lp)

Successors and Assigns; Participations and Assignments. (a) ~~This~~ Subject to the provisions of this Section 9.6, this Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Originators, the ~~Lenders~~Servicers, the Purchasers, the Lead Arranger, the Administrative Agent, the Collateral Agent, all future holders of the ~~Loans~~ Purchased Interests and their respective successors and assigns, except that no ~~Borrower~~ Originator or the Servicers (in its capacity as such) may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Purchaser. (b) Any ~~Lender other than any Conduit Lender~~ Purchaser may, without the consent of ~~any other party to this Agreement~~the Servicers, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any ~~Loan~~ Purchased Interest owing to such ~~Lender~~Purchaser, any ~~Revolving Commitment~~ Purchaser’s Investment Limits of such ~~Lender~~ Purchaser or any other interest of such ~~Lender hereunder~~Purchaser hereunder and under the other Transaction Documents. In the event of any such sale by a ~~Lender~~ Purchaser of a participating interest to a Participant, such ~~Lender~~Purchaser’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such ~~Lender~~ Purchaser shall remain solely responsible for the performance thereof, such ~~Lender~~ Purchaser shall remain the holder of any such ~~Loan~~ Purchased Interest for all purposes under this ~~Agreement~~Agreement and the other Transaction Documents, and the ~~Borrowers~~ Servicers, the Administrative Agent and the ~~Administrative~~ Collateral Agent shall continue to deal solely and directly with such ~~Lender~~ Purchaser in connection with such ~~Lender~~Purchaser’s rights and obligations under this ~~Agreement~~Agreement and the other Transaction Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Transaction Document, or any consent to any departure by any ~~Borrower~~ Originator therefrom, except to the extent that such amendment, waiver or consent would reduce the principal ~~of, or interest on,~~ of the ~~Loans~~ Purchased Interests or any fees payable hereunder, or postpone the ~~date~~ Scheduled Due Date of the ~~final maturity of the Loans~~Purchased Interests, in each case to the extent subject to such participation. Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another in respect of, the participation of such Participant. Each Borrower also agrees The Originators agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.7, ~~2.18~~ 2.8 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.9 with respect to its participation in the ~~Revolving Commitments~~ Purchaser’s Investment Limits and the ~~Loans~~ Purchased Interests outstanding from time to time as if it was a ~~Lender~~Purchaser; provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section as if it were a Lender and provided, further,~~ that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor ~~Lender~~ Purchaser would have been entitled to receive in respect of the amount of the participation transferred by such transferor ~~Lender~~ Purchaser to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any ~~Lender other than any Conduit Lender~~ Purchaser (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Purchaser or ~~a portion~~ any Purchaser Affiliate or, with the prior written consent of ~~its Loans~~ the Servicers and ~~Revolving Commitments hereunder~~ the Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed), to an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with~~ all or any part of its rights and obligations under this Agreement and the consent, not to be unreasonably withheld or delayed, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case other Transaction Documents pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register (it being understood and agreed~~ Register; provided that such ~~Assignee, if it shall not be~~ Assignee of a ~~Lender, shall deliver~~ Purchaser’s Investment Limit to Sanmina Mexico represents for the benefit of Sanmina Mexico to the ~~Administrative Agent an administrative questionnaire~~ effect set forth 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities lawsSection 2.8(d); and provided ~~that~~further, ~~notwithstanding anything~~ however, that unless otherwise agreed by the Servicers and the Administrative Agent, no such assignment to an Assignee (other than any Purchaser or any Purchaser Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in each case except in the ~~contrary in~~ case of an assignment of all of a Purchaser’s interests under this Agreement or ~~any~~ an assignment in connection with the replacement of a Purchaser pursuant to Section 2.10. For purposes of the ~~Loan Documents~~proviso contained in the preceding sentence, ~~no Lender~~ the amount described therein shall be ~~entitled~~aggregated in respect of each Purchaser and its Purchaser Affiliates, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureany. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a ~~Lender~~ Purchaser hereunder with a ~~Revolving Commitment~~ Purchaser’s Investment Limits and/or ~~Loans~~ Investment as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Section 2.7, 2.8, 2.9 and 9.5 for the period of time it was a Purchaser hereunder); provided that no Assignee shall be entitled to receive any greater amount pursuant to Section 2.7, 2.8 or 2.9 than the Assignor would have been entitled to receive in respect of the portion of the rights and obligations assigned by such Assignor to such Assignee had no such assignment occurred. Notwithstanding ~~the foregoing~~any provision of this Section 9.6, ~~any Conduit Lender may assign at any time to its designating Lender hereunder without~~ the consent of the Servicers shall not be required for any ~~Borrower or~~ assignment that occurs when a Termination Event shall have occurred and be continuing (although in such event, the ~~Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth~~ proviso in the ~~first~~ immediately preceding sentence ~~of this Section 10.6(c~~shall continue in full force and effect). (d) The Administrative Agent shall, on behalf of the ~~Borrowers~~Servicers, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the ~~Lenders~~ Purchasers and the ~~Revolving Commitment~~ Purchaser’s Investment Limit of, and the ~~principal~~ amount ~~(and stated interest)~~ of the ~~Loans~~ Purchased Interests owing to, each ~~Lender~~ Purchaser from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Servicers, each Originator, the Administrative Agent, the Collateral Agent and the ~~Lenders~~ Purchasers shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans and any Notes evidencing the Loans~~ Purchased Interests recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan, whether or not evidenced by a Note~~Purchased Interest, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register. The Register ~~(and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note~~ shall be ~~registered on the relevant Register only~~ available for inspection by any Purchaser or Originator at any reasonable time and from time to time upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption, and thereupon one or more new Notes may be issued to the designated Assignee, if requested by such Assigneereasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$4,000 (which shall be the sole responsibility of the Assignor or Assignee, as the case may be), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a ~~Lender~~ Purchaser to any Federal Reserve Bank in accordance with applicable law~~; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) Each Borrower, each Lender and the Administrative Agent each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearance.

Appears in 1 contract

Sources: Revolving Trade Receivables Purchase Agreement (Sanmina-Sci Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Borrowers~~Gannett, the Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~no Borrower~~ Gannett may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender other than any Conduit Lender may, without the consent of ~~any other party to this Agreement~~Gannett or the Administrative Agent, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement, and ~~the Borrowers~~ Gannett and the Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of this Agreement, or any consent to any departure by ~~any Borrower~~ Gannett therefrom, except to the extent that such amendment, waiver or consent would reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such participation. ~~Each Borrower~~ Gannett agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 9.7(a) as fully as if it were a Lender hereunder. ~~Each Borrower~~ Gannett also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 2.16 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~shall be permitted to assign~~may, in accordance with applicable law, ~~all~~ at any time and from time to time assign to any Lender or, with the consent of Gannett and the Administrative Agent (which, in each case, shall not be unreasonably withheld, delayed or conditioned; it being understood that (i) the Administrative Agent and each Lender effecting an assignment to any Person other than a ~~portion~~ Lender should notify the Borrower as promptly as possible of any request for assignment and the Borrower, in turn, should promptly consider such request for assignment; and (ii) Gannett’s consent shall not be considered to be unreasonably withheld, delayed or conditioned if Gannett withholds, delays or conditions its ~~Loans and Revolving Commitments hereunder~~ consent because, among other factors, it is concerned about a potential Assignee’s capital adequacy, liquidity or ability to perform its obligations under this Agreement), to any Lender Affiliate, an ~~Eligible Assignee~~ additional bank, financial institution or other entity (an “Assignee”) ~~with the consent, not to be unreasonably withheld~~ all or ~~delayed,~~ any part of ~~(a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default~~ its rights and obligations under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the Administrative Agent for its acceptance and recording in the relevant Register (it being understood and agreed that such 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws)Register; provided that, ~~notwithstanding anything~~ unless otherwise agreed by Gannett and the Administrative Agent, no such assignment to ~~the contrary in this Agreement~~ an Assignee (other than any Lender or any Lender Affiliate) shall be in an aggregate principal amount of less than $10,000,000, in each case except in the case of an assignment of all of a Lender’s interests under this Agreement. For purposes of the ~~Loan Documents~~proviso contained in the preceding sentence, ~~no Lender~~ the amount described therein shall be ~~entitled~~aggregated in respect of each Lender and its Lender Affiliates, ~~without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c)~~ if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureany. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto). Notwithstanding any provision of this Section 9.6, the consent of Gannett shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of ~~any Borrower~~ Gannett or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section ~~10.6(c~~9.6(c). (d) The Administrative Agent shall, on behalf of ~~the Borrowers~~Gannett, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a~~ the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Revolving~~ Commitment of, and the principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to time. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and ~~the Borrowers~~Gannett, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the Loans and any ~~Notes~~ promissory notes evidencing the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a ~~Note~~promissory note, shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant Register (and each Note shall expressly so provide)~~Register. Any assignment or transfer of all or part of a Loan evidenced by a ~~Note~~ promissory note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the ~~Note~~ promissory note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new ~~Notes may~~ promissory notes shall be issued to the designated Assignee~~, if requested by such Assignee~~. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an Assignor, an Assignee and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that no such registration and processing fee shall be payable in the case of an Assignee which is a Lender Affiliate of the relevant Assignor), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) record the information contained therein in the ~~relevant~~ Register on the effective date determined pursuant thereto. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ 9.6 concerning assignments relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, including any pledge or assignment by a Lender to ~~any~~ secure obligations to a Federal Reserve Bank in accordance with applicable law; provided that ~~the foreclosure on~~ no such pledge or assignment shall release a Lender from any of its obligations hereunder or substitute any such ~~pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6~~pledgee or assignee for such Lender as a party hereto. (hg) ~~Each Borrower~~Gannett, upon receipt of written notice from the relevant Lender, agrees to issue ~~Notes~~ a promissory note to any Lender requiring ~~Notes~~ such a note to facilitate transactions of the type described in paragraph (gf) above. (ih) Each ~~Borrower~~of Gannett, each Lender and the Administrative Agent ~~each~~ hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for one year and one day after the payment in full of the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit ~~Lender during such period of forbearance~~Lender.

Appears in 1 contract

Sources: Competitive Advance and Revolving Credit Agreement (Gannett Co Inc /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Borrowers~~Company, the Lenders, the ~~Administrative Agent~~Agents, all future holders of the Loans and their respective successors and assigns, except that ~~no Borrower~~ the Company may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender (except for any assignment by a Canadian Borrower, a Spanish Borrower or a Swedish Borrower as permitted by Section 7.3) and Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23Lender. (b) Any Lender ~~other than any Conduit Lender~~ may, without the consent of ~~any other party to this Agreement~~the Company, in accordance with applicable law, at any time sell to one or more ~~Eligible Assignees~~ banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any ~~Revolving~~ Commitment of such Lender or any other interest of such Lender ~~hereunder~~hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement~~Agreement and the other Loan Documents, and the ~~Borrowers~~ Company and the ~~Administrative Agent~~ Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this ~~Agreement~~Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~this Agreement~~any Loan Document, or any consent to any departure by any ~~Borrower~~ Loan Party therefrom, except to the extent that such amendment, waiver or consent would 101 reduce the principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans, in each case to the extent subject to such ~~participation~~participation or would release all or substantially all of the Collateral or release all or substantially all of the Guarantors from their obligations under the Collateral Agreement. ~~Each Borrower~~ The Company agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing -------- such participating interest, ~~neither~~ such ~~Participant, on~~ Participant shall be deemed to have agreed to share with the ~~one hand, nor~~ Lenders the ~~Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be required to deal directly with one another~~ proceeds thereof as provided in ~~respect of, the participation of such Participant~~Section 12.7(a) as fully as if it were a Lender hereunder. ~~Each Borrower~~ The Company also agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~3.12, ~~2.18~~ 3.13 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) 3.14 with respect to its participation in the ~~Revolving~~ Commitments and the Loans outstanding from time to time as if it was a Lender; provided that, in the case of Section ~~2.18~~-------- 3.13, such Participant shall have complied with the requirements of said Section ~~as if it were a Lender~~ and provided, further, that no Participant shall be entitled to receive any -------- ------- greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, no Loan Party shall be required to pay any greater amount pursuant to Section 2.18 as a result of the transfer of a participation to a Participant than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with such Canadian Borrower for purposes of the Income Tax Act (Canada) or, in the case of any Spanish Borrower, to establish that any transaction between the Participant and the Spanish Borrower is in compliance with the Spanish transfer pricings rules, when applicable, for the purposes of Law 27/2014, of 27 November, on Corporate Income Tax and Law 35/2006, of 28 November, on Personal Income Tax. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~other than any Conduit Lender~~ (an “"Assignor”") ~~shall be permitted to assign~~may, in accordance with applicable -------- law, ~~all or a portion of its Loans~~ at any time and ~~Revolving Commitments hereunder~~ from time to ~~an Eligible Assignee (an “Assignee”)~~ time assign to any Lender, any affiliate thereof or, with the ~~consent~~consent of the Company and the Agents (which, in each case, shall not to be unreasonably withheld or delayed~~, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i~~) (provided that the consent of the -------- Company need not be obtained with respect to ~~a Borrower~~any assignment of Term Loans), ~~has occurred~~ to an additional bank, financial institution or other entity (an "Assignee") all or -------- any part of its rights and is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit K, executed by such Assignee, such ~~Assignor~~ Assignor, the Administrative Agent and ~~any other Person whose~~ the Syndication Agent (and, where the consent of the Company is required pursuant to ~~this paragraph~~the foregoing provisions, by the Company) and delivered to the Administrative Agent for its acceptance and recording in the ~~relevant Register~~ Register; provided that no such assignment to an -------- Assignee (~~it being understood and agreed that such Assignee, if it~~ other than to any Lender or any affiliate thereof) shall ~~not~~ be in an aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), ~~shall deliver to~~ unless otherwise agreed by the Company, the Administrative Agent ~~an administrative questionnaire in which~~ and 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 their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if Syndication Agent. Any such assignment ~~would increase~~ need not be ratable as among the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the cost under this Agreement to any Borrower in the foreseeable futureFacilities. Upon such execution, delivery, acceptance and ~~recording in the Register pursuant to Section 10.6(d)~~recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance (which, unless the Administrative Agent shall otherwise agree, shall not be less than three Business Days following the delivery to the Administrative Agent of such Assignment and Acceptance for acceptance and recording), (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with a ~~Revolving~~ Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto). Notwithstanding any provision of this Section 12.6, the ~~foregoing,~~ consent of the Company shall not be required for any ~~Conduit Lender may assign~~ assignment which occurs at any time ~~to its designating Lender hereunder without the consent~~ when any Event of ~~any Borrower or the Administrative Agent any or all of the Loans it may~~ Default shall have ~~funded hereunder~~ occurred and ~~pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this Section 10.6(c)~~be continuing. (d) The Administrative Agent ~~shall, on behalf of the Borrowers,~~ shall maintain at its address referred to in Section ~~10.2~~ 12.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~each, a “~~the "Register”") for the recordation of the names and addresses of -------- the Lenders and the ~~Revolving~~ Commitment of, and ~~the~~ principal amount ~~(and stated interest)~~ of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in ~~each~~ the Register shall ~~constitute prima facie evidence of the same~~be conclusive, in the absence of manifest error, and the ~~Borrowers~~Company, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~each~~ the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing ~~the Loans~~ such Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~relevant~~ Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the ~~relevant~~ Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance, and thereupon one or more new Notes ~~may~~ in the same aggregate principal amount shall be issued to the designated ~~Assignee, if requested~~ Assignee and the old Notes shall be returned by ~~such Assignee~~the Administrative Agent to the Company marked "cancelled". The Register shall be available for inspection by the Company or any Lender at any reasonable time and from time to time upon reasonable prior notice. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption in conformity with Section 10.6(c),~~ Acceptance executed by an ~~Assignor,~~ assigning Lender and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof or a Person under common management with such Lender, by the Company, the Administrative Agent and ~~any other Person whose consent is required by Section 10.6(c),~~ the Syndication Agent) together with payment to the Administrative Agent of a registration and processing fee of ~~US$3,500~~$3,500 (except that (i) such fee shall be payable by the Company, in the event of any assignment made at the request of the Company pursuant to Section 3.17 and (ii) no such registration and processing fee shall be payable in the case of an Assignee which is an affiliate of the assigning Lender), the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the ~~relevant Register on~~ Register. On or prior to such effective date, the ~~effective date determined~~ Company, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant ~~thereto~~to such Assignment and Acceptance and, if the assigning Lender has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the assigning Lender in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Notes shall be dated the Closing Date and shall otherwise be in the form of the Note replaced thereby. (gf) For avoidance of ~~doubt~~ doubt, the parties to this Agreement acknowledge that the provisions of this Section ~~10.6~~ concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit ~~the granting of security~~assignments creating security interests, ~~including~~ including, without limitation, any pledge or assignment by a Lender of any Loan or Note to (i) any Federal Reserve Bank in accordance with applicable ~~law~~law or (ii) the Trustee with respect to a pool of collateralized loan obligations which includes the obligations owing to such Lender hereunder. (g) Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Bank") may grant to a special purpose funding vehicle (an ------------- "SPC") of such Granting Bank, identified as such in writing from time to time by --- the Granting Bank to the Administrative Agent and the Company, the option to provide to the Borrowers all or any part of any Loan that such Granting Bank would otherwise be obligated to make to the Borrowers pursuant to Section 2.2 or 2.4; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) above. (i) nothing contained shall constitute a commitment by any -------- SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Bank shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall be deemed to utilize the Commitments of all Lenders to the same extent, and as if, such Loan were made by the Granting Bank. Each ~~Borrower~~party hereto hereby agrees that no SPC shall be liable for any payment under this Agreement for which a Lender would otherwise be liable for so long as, and to the extent that, the related Granting Bank makes such payment. In furtherance of the foregoing, each ~~Lender and~~ party hereto hereby agrees that, prior to the ~~Administrative Agent each hereby confirms~~ date that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state bankruptcy or similar law, for is one year and one day after the payment in full of all outstanding senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization arrangement, insolvency or liquidation proceedings or similar proceedings under the ~~latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating~~ laws of the United States or any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such Conduit Lender during such period of forbearancestate thereof.

Appears in 1 contract

Sources: Credit and Guarantee Agreement (Exide Corp)

Common use of Successors and Assigns; Participations and Assignments Clause in Contracts