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 Parent, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 4 contracts

Sources: Credit Agreement (Cinemark Usa Inc /Tx), Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark Holdings, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Loan Agreement shall ~~be binding upon and~~ inure to the benefit of the ~~Parent, the Borrower, the Lenders, the Agents, all future holders~~ respective successors and permitted assigns of the ~~Loans~~ parties hereto and of the Related Parties and other indemnified Persons hereunder and their respective successors and permitted assigns, and the obligations and liabilities assumed in this Loan Agreement by the parties hereto shall be binding upon their respective successors and permitted assignees, except that ~~the Borrower~~ (i) except as permitted under Section 9.03, no Loan Party may ~~not~~ assign or otherwise transfer any of its rights or obligations ~~under this Agreement~~ hereunder without the prior written consent of each Lender, and any attempted assignment or transfer by any Loan Party without such consent shall be null and void, and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 12.06, and any attempted assignment or transfer by any Lender not in accordance with this Section 12.06 shall be null and void. Nothing in this Loan Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section 12.06) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Lenders and the other Secured Parties) any legal or equitable right, remedy or claim under or by reason of this Loan Agreement. Notwithstanding anything to the contrary herein, (a) any Lender shall be permitted to pledge or grant a security interest in all or any portion of such Lender’s rights hereunder including, but not limited to, any Loans (without the consent of, or notice to or any other action by, any other party hereto) to secure the obligations of such Lender or any of its Affiliates to any Person providing any loan, letter of credit or other extension of credit to or for the account of such Lender or any of its Affiliates and (b) the Agents ~~and each Lender~~shall be permitted to pledge or grant a security interest in all or any portion of their respective rights hereunder or under the other Loan Documents, including, but not limited to, rights to payment (without the consent of, or notice to or any other action by, any other party hereto), to secure the obligations of such Agent or any of its Affiliates to any Person providing any loan, letter of credit or other extension of credit to or for the account of such Agent or any of its Affiliates. (b) ~~Any~~ (i) Subject to the conditions set forth in Section 12.06(b)(ii) below, any Lender ~~may, without the consent of the Borrower, in accordance with applicable law, at any time sell~~ may assign to one or more ~~banks, financial institutions~~ assignees all or ~~other entities (each,~~ a ~~“Participant”) participating interests in any Loan owing to such Lender, any Commitment~~ portion of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s its rights and obligations under this Loan Agreement ~~and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment~~ (including all or ~~waiver~~ a portion of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement its Commitments and the Loans ~~are due~~ at the time owing to it) with the prior written consent of: (A) the Administrative Borrower, which consent shall not be unreasonably withheld, conditioned, delayed 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 burdened (provided that it ~~as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant~~ shall be deemed to ~~have agreed~~ be reasonable for the Administrative Borrower not to ~~share with~~ consent to any assignment to an assignee that is not an Eligible Assignee); provided, however, that (1) no consent of the ~~Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The~~ Administrative Borrower ~~and each Lender also agree that each Participant~~ shall be ~~entitled~~ required for an assignment to ~~the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were~~ a Lender~~; provided that~~, ~~in the case~~ to an Affiliate of ~~Section 2.18~~a Lender, ~~such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an ~~“Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related~~ Approved Fund ~~thereof~~ or, ~~with the consent of (i) the Administrative Agent and so long as no Default or~~ if a Specified Event of Default has occurred and is continuing, to any other assignee and (2) the Administrative Borrower shall be deemed to have consented to any such assignment (~~which, in each case,~~ and shall not be ~~unreasonably withheld~~ a party to or ~~delayed~~be required to sign any Assignment and Acceptance related thereto) unless it objects thereto by written notice delivered to the Administrative Agent within ten (~~provided that no such consent need be obtained with respect to any assignment of Term Loans~~10) Business Days after having received notice thereof; and (B) the Administrative Agent, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), conditioned, delayed or burdened; provided, that no consent of the Administrative Agent shall be required for an assignment to a Lender, 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, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all Affiliate of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 an Approved Fund; and provided further that the ~~extent provided in such Assignment and Assumption~~withholding, ~~have the rights and obligations~~ conditioning, delaying or burdening of a Lender hereunder with 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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~~ an assignment to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $3,500 (treating multiple, simultaneous assignments by Loan Party or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any ~~pledge or assignment by a Lender~~ Affiliate of any Loan ~~or Note to any Federal Reserve Bank~~ Party, in ~~accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein~~each case, 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 (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~~ deemed 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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentreasonable.

Appears in 3 contracts

Sources: Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE), Loan Agreement (Spark Networks SE)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the Agents, the Issuing Lenders, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ no Borrower may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Agents, each Issuing Lender and each ~~Lender~~Lender (provided that a Borrower may merge or consolidate with another Borrower in accordance with Section 7.04). (b) Any Lender may, without the consent of of, or notice to, any Borrower or the ~~Borrower~~Administrative Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (other than the Company or any of its controlled Affiliates, a natural person (or holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person) or a Defaulting Lender) (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the ~~Borrower~~ Borrowers and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders, all affected Lenders or all affected Lenders under a particular Facility pursuant to Section ~~10. 1~~10.01. ~~The~~ 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.07(a) as fully as if such Participant were a Lender hereunder. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time~~ 2.21 as if such Participant were a Lender (subject to the requirements and limitations therein, including the requirements under Section 2.20(e), (f) or (h) (it being understood that the documentation required under Section 2.20(e), (f) or (h) shall be delivered to the transferor Lender)); provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said 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,~~ occurred except to the extent such entitlement to receive a greater ~~amount~~ payment results from ~~the adoption of, or~~ a ~~change~~ Change in ~~any Requirement of~~ Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ 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~~ participant or any information relating to a ~~Participant~~participant’s interest in any ~~Commitments~~ Commitments, Loans or its other obligations under ~~any Loan Document~~this Agreement) except to the extent that the relevant parties, acting reasonably and in good faith, determine that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and ~~such Lender~~ 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 (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity more Eligible Assignees (an “Assignee”) all or any part of its rights and obligations under this ~~Agreement~~ Agreement, with the 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 ten Business Days after request (in accordance with Section 10.02) therefor) pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED 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 ~~Borrower~~Company, the Administrative Agent or ~~the~~ each Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the ~~Borrower~~ 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~~ 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 Acceptance, as of the Trade Date) of less than ~~$5,000,000, in the case of any assignment of Revolving Credit Commitments, and~~ (i) $1,000,000, in the case of ~~any assignment of~~ Term Loans and (ii) $2,500,000, in the case of Revolving Credit Commitments (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~~ Company and the Administrative Agent ~~and, after giving effect~~ (each such consent not to ~~such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment~~ be unreasonably withheld or ~~Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans~~delayed). Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.19, ~~2.18~~ 2.20 and ~~10.5~~ 10.05 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this ~~Section~~Section 10.06 to the contrary, (I) the consent of the ~~Borrower~~ Company shall not be required for any assignment (x) in the case of any assignment of Term Loans, to another Lender, an Affiliate of a Lender 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 under Article 8(a) or Article 8(f) shall have occurred and be ~~continuing~~continuing or (z) during the primary syndication of the Term Loans and the Term Loan Commitments to Persons identified in writing to the Company as syndication targets prior to the Closing Date and (II) the consent of the Administrative Agent shall not be required for any assignment of Term Loans to another Lender, an Affiliate of a Lender or a Related Fund of a Lender. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) ~~The Administrative Agent shall~~By executing and delivering an Assignment and Acceptance, ~~on behalf~~ 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 ~~Borrower~~interest being assigned thereby free and clear of any adverse claim and that its Term Loan Commitment and Revolving Credit Commitment, ~~maintain at~~ and the outstanding balances of its ~~address~~ 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 clause (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 ~~10.2~~ 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, acting for this purpose as agent of the Borrowers, shall maintain at one of its addresses in the City of New York a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register with respect to the applicable Facility (~~the~~ each, a “Register”) for the recordation of the names and addresses of the applicable Lenders and the Commitment of, and principal amount of the applicable Loans owing to, each applicable Lender from time to time. The entries in ~~the~~ such Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register~~such 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~~ such 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~~ thereupon, if requested by the Assignee, one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Company marked “canceled~~.” The~~ ”. Such Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (ef) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $3,500 (~~treating multiple, simultaneous assignments by~~ which fee may be waived or ~~to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable~~ reduced in ~~connection with an assignment by or to a Barclays Entity~~the sole discretion of the Administrative Agent), ~~and the acceptance~~ an Administrative Questionnaire completed in respect of the ~~Assignee’s completed administrative questionnaire~~ assignee (unless the ~~Assignee~~ assignee shall already be a Lender hereunder) and any applicable tax forms and other documentation required pursuant to Sections 2.20(e), (f) or (h), 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 Borrower~~Register. ~~On or prior to such effective date, the~~ Each Borrower, at its own expense, promptly 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fg) Subject to Section 10.15, 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 Restricted Subsidiaries. (h) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 ~~(i) nothing herein~~ no such assignment shall ~~constitute~~ release a ~~commitment by~~ Lender from 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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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~~ obligations hereunder or substitute 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.assignee fo

Appears in 3 contracts

Sources: Credit Agreement (Harsco Corp), Amendment Agreement (Harsco Corp), Amendment and Restatement Agreement (Harsco Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, ~~2.18~~ 2.17 and ~~2.19~~ 9.5 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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~~, except~~ . Each Lender selling participations (other than the sale of participations to a Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the ~~extent~~ Borrower and the Administrative Agent of such ~~entitlement~~ participations and of the identity of the purchasers of such participations; provided that no delay or failure of such notice to ~~receive a greater amount results from~~ be so given shall affect the ~~adoption of, or a change in any Requirement~~ validity of ~~Law that occurs after the Participant acquired the applicable participation~~such sale. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ 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 or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent 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~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a Loan, unless each of the Administrative Agent and ~~$1,000,000~~the Borrower otherwise consents to such lesser amount, ~~in the case of any~~ (ii) each partial assignment ~~of Term Loans (other than in the case of~~ shall be made as an assignment of a proportionate part of all ~~of a~~ the assigning Lender’s ~~interests~~ rights and obligations under this ~~Agreement), unless otherwise agreed by~~ Agreement with respect to the ~~Borrower~~ Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent ~~and~~an Assignment and Acceptance, ~~after giving effect~~ together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to ~~such assignment,~~ the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender (~~if it shall retain any Revolving Credit Commitment or Loans~~the “Assignor”) ~~shall have Commitments~~ and ~~Loans aggregating at least $5,000,000~~assignee Lender (the “Assignee”), ~~in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery,~~ (ii) acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this paragraph (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by 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~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 9.5. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as ~~to Sections 2.17, 2.18~~ a sale by such Lender of a participation in such rights and ~~10.5~~ obligations in ~~respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision~~ accordance with paragraph (c) of this Section. (d) Notwithstanding anything to the contrary contained in this Agreement, no assignment shall be made (i) to the Borrower or any of its Subsidiaries or Affiliates, or (ii) to any Defaulting Lender or any of its Subsidiaries, or any Person, who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii) of this Section 9.6(d). (e) 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 (but not including the Borrower) 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 ~~shall~~ and the Administrative Agent, the applicable pro rata share of Loans previously requested but not ~~be required for~~ 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 and participations in Swingline Loans in accordance with its Revolving Percentage. Notwithstanding the foregoing, in the event that any assignment ~~that occurs at~~ of rights and obligations of any ~~time when any Event~~ Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of ~~Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in~~ this paragraph, ~~multiple assignments to or by two or more Related Funds~~ then the assignee of such interest shall be ~~aggregated and~~ deemed to be a Defaulting Lender for all purposes of ~~the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~this Agreement until such compliance occurs. (df) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal ~~amount~~ and stated interest amounts of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (eg) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fh) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (gi) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~j) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 3 contracts

Sources: Credit Agreement (Nicor Inc), Credit Agreement (Agl Resources Inc), Credit Agreement (Northern Illinois Gas Co /Il/ /New/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Borrower, the ~~Borrower~~Guarantor, the Lenders, the ~~Agents~~Issuing Bank, the Administrative Agent, all future holders of ~~the Loans~~ any Extensions of Credit and their respective successors and assigns, except that neither the Borrower nor the Guarantor may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Issuing Bank and each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any ~~Loan owing to~~ Extensions of Credit made by such Lender, any Commitment of such Lender or and any other ~~interest~~ Reimbursement Obligations and other interests of such Lender hereunder and under the other ~~Loan~~ 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~~ Extensions of Credit and other Reimbursement Obligations for all purposes under this Agreement and the other ~~Loan~~ Credit Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other ~~Loan~~ 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 any ~~Loan~~ Credit Document, or any consent to any departure by any ~~Loan~~ Credit Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, any Extensions of ~~all Lenders pursuant~~ Credit or any fees payable hereunder, postpone the date of the final maturity of any Extensions of Credit or release the Guarantor from its obligations under Article Nine of this Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and ~~the Loans~~ any Extensions of Credit and other Reimbursement Obligations 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 12.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.6, ~~2.18~~ 2.7 and ~~2.19~~ 3.9 with respect to its participation in the Commitments and ~~the Loans~~ any Extensions of Credit and other Reimbursement Obligations outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~3.9, such Participant shall have complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States 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”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or ~~any Affiliate or Related Fund thereof or, with the consent of~~ more Eligible Assignees (~~i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in~~ each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and any Extensions of Credit and other Reimbursement Obligations at the time owing to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Registerit); provided that ~~no such assignment to an Assignee~~ (~~other than any Lender or any affiliate or Related Fund thereof~~i) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than except in the case of an assignment of ~~all~~ the entire remaining amount of a the assigning Lender’s ~~interests under this Agreement), unless otherwise agreed by~~ Commitment and any Extensions of Credit at the ~~Borrower and the Administrative Agent and, after giving effect~~ time owing to ~~such assignment, the assigning Lender (if~~ it ~~shall retain any Revolving Credit Commitment~~ or ~~Loans) shall have Commitments and Loans aggregating at least $5,000,000,~~ in the case of ~~Revolving~~ an assignment to a Lender or a Lender Affiliate, the aggregate amount of the Commitment (which for this purpose includes any Extensions of Credit ~~Commitments~~outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000, unless each of the Administrative Agent and the Borrower otherwise consents to such lesser amount, (iii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to any Extensions of Credit or the Commitment assigned and (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and ~~$1,000,000~~such Assignee, in if it shall not be a Lender, shall deliver to the ~~case~~ Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the ~~Term Loans. Any~~ Assignment and Acceptance by the assigning Lender and such ~~assignment need not be ratable as among the Facilities. Upon such execution~~Assignee, ~~delivery,~~ (ii) acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such Assignee is not a United States person (as such term is defined in Section 7701(a)(30) of the Code), compliance by such Person with Section 3.9, from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x) the~~ such Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by 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~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto, except as~~ hereto but shall continue to ~~Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not~~ be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued entitled to the ~~designated Assignee~~benefits of Sections 2,6, 2.7, 3.9 and ~~the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled~~12.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Letter of Credit and Security Agreement (Agl Resources Inc), Letter of Credit and Security Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents, all future holders of the Loans~~ Administrative Agent and their respective successors and assigns, except that neither the Borrower nor the Restricted Subsidiaries 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. (b) Any Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Borrower,~~ its business and in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such ------------ Lender or any L/C Obligation of such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final scheduled maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 12.7(a) as --------------- fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and ~~2.19~~ 4.11 ------------ ---- ---- with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~(an “Assignor”)~~ 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 or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 EA, executed by such Assignee and such ~~Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons)~~ --------- assigning Lender and delivered to the Administrative Agent for its acceptance and recording in the ~~Register~~Register (with a copy to the Borrower); provided ~~that~~ that, (i) -------- no such assignment ~~to an Assignee~~ (other than to any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments,~~ 5,000,000 and $~~1,000,000~~1,000,000 multiples thereof, ~~in the case of any assignment of Term Loans~~ (~~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 the Administrative Agent and,~~ ii) after giving effect to any such assignment, the assigning Lender (~~if it~~ together with any Lender which is an affiliate of such assigning Lender) shall retain no less than 51% of its original Commitment, unless otherwise agreed to by the Borrower, (iii) no such assignment may be made unless such assigning Lender also assigns a percentage of its interest in the Tranche B Agreement equal to the percentage of the Total Commitment being assigned by such Lender under this Agreement and to the same Assignee receiving such percentage of its interest hereunder and (iv) each assignment (other than to any ~~Revolving Credit Commitment~~ Lender or ~~Loans~~any affiliate thereof) shall ~~have Commitments and Loans aggregating at least $5,000,000, in~~ be subject to the ~~case of Revolving Credit Commitments, and $1,000,000, in the case~~ prior written consent of the ~~Term Loans. Any such assignment need~~ Borrower (which consent shall not be ~~ratable as among the Facilities~~unreasonably withheld). Upon such execution, delivery, acceptance and 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 ~~Commitments and/or Loans~~ a Commitment 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, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (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 L (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 12.6(f). --------------- (g) The Administrative ~~Agent shall~~Agent, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders --------- (including Alternative Noteholders) and the ~~Commitment~~ Commitments of, and principal ~~amount~~ amounts of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ 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 the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing such 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (eh) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee ~~(and, in any case where the consent of any other Person 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 $~~3,500 (treating multiple~~3,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 ~~Borrower. On or prior to such effective date,~~ Lenders and 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fi) 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, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (Cable Tv Fund 12-C LTD), 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 Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States 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”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent 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~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of~~ a ~~Lender’s interests under this Agreement)~~Loan, unless ~~otherwise agreed by the Borrower and~~ each of the Administrative Agent and, ~~after giving effect~~ so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to ~~such assignment~~be unreasonably withheld or delayed), (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $1,000, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender and assignee Lender, (~~if it shall retain any Revolving Credit Commitment or Loans~~ii) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by 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~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 10.5. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as ~~to Sections 2.17, 2.18~~ a sale by such Lender of a participation in such rights and ~~10.5~~ obligations in ~~respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision~~ accordance with paragraph (c) of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~1,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 2 contracts

Sources: Credit Agreement (Agl Resources Inc), Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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 ~~Agents~~ Administrative Agent and each ~~Lender~~Lender (and any attempted such assignment or transfer without such consents shall be null and void). (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Revolving Credit Loan owing to such Lender, ~~any~~ the Revolving Credit Commitment of such Lender or any other interest of such Lender 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 any Reimbursement Obligation for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party ~~therefrom~~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 ~~require~~ reduce the ~~consent~~ 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 ~~Lenders pursuant~~ 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 ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Revolving Credit Commitments and the Loans and Reimbursement Obligations outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Approved Fund or Control Investment Affiliate ~~or Related Fund~~ thereof or, with the consent of ~~(i)~~ each Issuing Lender, the Swing Line Lender, the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent~~ Borrower or ~~the Issuing Lenders~~ any other Person is required pursuant to the foregoing provisions, by the Borrower and each such other ~~Persons~~Person) and delivered to the Administrative Agent 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~~ Approved Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 3,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless (i) otherwise agreed by the Borrower and the Administrative Agent ~~and, after giving effect~~ or (ii) such assignment is one of two or more assignments being made simultaneously to ~~such assignment~~affiliated Assignees, the ~~assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating~~ sum of the aggregate principal amounts of which is at least $~~5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities~~3,000,000. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ 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~~2.13, ~~2.18~~ 2.14, 2.16 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount of the ~~Loans~~ Revolving Extensions of Credit owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Revolving Extensions of Credit and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 ~~Loans~~Revolving Extensions of Credit) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ▇▇▇▇▇▇ Commercial Paper Inc. or any Affiliate thereof or (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Administrative Agent and the Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit ~~Commitment and/or Term Loans, as the case may be~~Commitment, 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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 (i) nothing herein shall constitute a commitment by any SPC to make any ~~Loan and~~ 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~~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, the Lenders and the 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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~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 Granting Lender as to whether such consent is being granted or withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Polaner Inc), Revolving Credit Agreement (B&g Foods Holdings Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of ~~all Lenders~~ the Lender from which such participation was purchased pursuant to Section 109. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.10, ~~2.18~~ 2.11, 2.12 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of ~~Section 2.18~~Sections 2.12 and 2.16, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof or, with the written consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Commitments, the ~~Borrower~~ written consent of the Issuing Lenders (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by the Arranger or any of its Affiliates with respect to any assignment by either of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldthem), 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, substantially in the form of Exhibit EA, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any ~~affiliate~~ Affiliate or Related ~~Fund thereof)~~ Fund), in the case of an assignment of Revolving Commitments and/or Loans, shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), and after giving effect thereto, the Assignor, in the case of an assignment of Revolving Commitments and/or Loans, shall have Revolving Commitments and/or Loans aggregating at least $5,000,000 unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.10, ~~2.18~~ 2.11, 2.12 and ~~10.5~~ 9.4 in respect of the period prior to such effective ~~date~~ date), and (z) the assignee shall comply with Section ~~10.14~~2.16 (f). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by or to ~~or by~~ two or more Related Funds shall be ~~aggregated and for purposes of~~ aggregated. Notwithstanding anything herein to the ~~minimum hold amounts~~contrary, neither the ~~Commitments and Loans of Related Funds shall~~ Borrower nor any Affiliate thereof may be ~~aggregated~~an “Assignee” hereunder. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be ~~conclusive, in~~ presumptive evidence of the ~~absence of manifest error~~amounts so entered, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.7(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $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 ~~connection~~ 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 ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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,~~ Notes 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.7 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other ~~indebtedness~~ Debt of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~9.7(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. This ~~paragraph (g~~Section 9.7(g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (Great Lakes Dredge & Dock CORP), Credit Agreement (Great Lakes Dredge & Dock CORP)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ affect the ~~consent~~ Participant as described in (i) of ~~all Lenders pursuant~~ the proviso in Section 9.1, in each case to ~~Section 10. 1~~the extent subject to such participation. 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~~ at any time that an Event of ~~Default~~Default has occurred and is occurring, 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time upon three Business Days notice to the Administrative Agent assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the ~~Administrative Agent~~ Borrower, and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the ~~Borrower~~ Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided ~~that no such~~ the consent of the Borrower need not be obtained with respect to any assignment ~~of Term Loans, unless such assignment is~~ to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldLender), 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, substantially in the form of Exhibit EG, executed by such ~~Assignee and~~ Assignee, such Assignor and the Administrative Agent (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrower) and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), and that after giving effect to any partial assignment, the Assignor shall remain the Lender in respect of Loans in an aggregate principal amount of no less than $5,000,000, unless otherwise agreed by the Borrower and the Administrative Agent ~~and, after giving effect to~~ and that no such ~~assignment,~~ assignment shall be effective until executed by the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAdministrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ 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 ~~Register~~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 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 in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrower or the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $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 The Toronto-Dominion Bank or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 and the Borrower. On or prior to such effective 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,~~ Notes of the assigning Lender) , a new ~~Revolving Credit Note and/or applicable Term Notes, as the case may be~~Note, 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,~~ amount assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ 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~~Note, to the order of the ~~Assignor~~ 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 ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (Bear Island Finance Co Ii), Credit Agreement (Bear Island Finance Co Ii)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (Rotech Healthcare Inc), Credit Agreement (Rotech Healthcare Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents, all future holders of the Loans~~ Administrative Agent and their respective successors and assigns, except that 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. (b) Any Lender may~~, without the consent of the Borrower~~, in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions~~ banks or other entities (~~each, a “Participant”~~"Participants") participating ------------ interests in any Loan or L/C Obligation owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final scheduled maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 11.7(a) as --------------- fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and ~~2.19~~ 4.11 ------------ ---- ---- with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~(an “Assignor”)~~ may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 E------- A, executed by such Assignee and such ~~Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons)~~ assigning Lender and delivered to the - Administrative Agent for its acceptance and recording in the ~~Register~~Register (with a copy to the Borrower) and upon payment to the Administrative Agent of a processing fee in the amount of $3,500 by the applicable Lender and/or Assignee; provided ~~that~~ that, (i) no such assignment ~~to an Assignee (other than any Lender or any affiliate or Related Fund thereof)~~ shall be in an ~~aggregate principal~~ amount less than $5,000,000 -------- or a whole multiple of $100,000 in excess thereof or, if less than $5,000,000, in the ~~case~~ entire amount of ~~any~~ such Lender's applicable Commitment; and (ii) no such assignment shall be made without the prior consent of ~~Revolving Credit Commitments,~~ the Administrative Agent and ~~$1,000,000, in~~ the ~~case of any~~ Borrower (which consent shall not be unreasonably withheld or delayed) unless such assignment ~~of Term Loans (other than in the case of~~ is to another Lender or an ~~assignment of all~~ Affiliate of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in ~~the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any~~ which event no such ~~assignment need not~~ consent shall be ~~ratable as among the Facilities~~required. Upon such execution, delivery, acceptance and 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 ~~Commitments and/or Loans~~ a Commitment 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, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (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 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 (the “"Register”") for the recordation of the names and addresses of the Lenders -------- (including Alternative Noteholders) and the ~~Commitment~~ Commitments of, and principal ~~amount~~ amounts of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ 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 the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing such 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (eh) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee ~~(and~~and the Borrower, ~~in any case where the consent of any other Person is required by Section 10.6(c)~~if applicable, ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $3,500 ~~(treating multiple~~from the applicable Lender and/or Assignee, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 ~~Borrower. On or prior to such effective date,~~ Lenders and 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fi) 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, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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. (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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

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

Successors and Assigns; Participations and Assignments. (ai) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents, all future holders of the Loans~~ Administrative Agent and their respective successors and assigns, except that 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. (bii) Any Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Borrower,~~ its business and in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other ~~Loan~~ 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 for all purposes under this Agreement and the other ~~Loan~~ Credit Documents, and the Borrower and the ~~Agents~~ 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 and the other ~~Loan~~ 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 any ~~Loan~~ Credit Document, or any consent to any departure by any ~~Loan~~ Credit Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ directly forgive any principal of any Loan or reduce the ~~consent~~ stated rate, or forgive any portion, or postpone the date for the payment, of ~~all Lenders pursuant~~ any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the aggregate amount of the Commitments of any Lender or postpone the date of the final scheduled maturity of any Loan, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 13.7 as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.10 and ~~2.19~~ 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; , provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (ciii) Any Lender ~~(an “Assignor”)~~ 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 ~~or Related Fund~~ (with the consent of the Borrower if any increased costs would result therefrom) thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (~~which,~~ which in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case ~~such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent~~ shall not be unreasonably withheld, it being understood that, without limitation, the Borrower shall have the right to withhold its 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, fund which is regularly engaged in making, purchasing or investing in loans or securities or financial institution ~~or other entity~~ (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Credit Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EF, executed by such ~~Assignee and~~ Assignee, such ~~Assignor~~ assigning Lender (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an Affiliate thereof, by the Borrower and ~~such other Persons~~the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; , provided ~~that~~ that, except in the case of an assignment of all of a Lender's interests under this Agreement, unless otherwise agreed to by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund~~ Affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments and/or Loans~~ a Commitment as set forth ~~therein,~~ 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Agreement to the contrary, the consent of the Borrower shall not be required for any assignment that occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 11.5 shall have occurred and be ~~continuing. For purposes of~~ continuing with respect to the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedBorrower. (db) Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of its Loans to any Federal Reserve Bank in accordance with applicable law. In order to facilitate such pledge or assignment, the Borrower hereby agrees that, upon request of any Lender at any time and from time to time after the Borrower has made its initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower's own expense, a promissory note, substantially in the form of Exhibit C-1 or C-2, as the case may be, evidencing the Term Loans and Revolving Credit Loans, respectively, owing to such Lender. (c) The Administrative ~~Agent shall~~Agent, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing such Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Credit 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (ei) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an Affiliate thereof, by ~~each such other Person~~the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 ~~Borrower. On or prior to such effective date,~~ Lenders and 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fe) ~~For avoidance of doubt~~Subject to Section 13.16, the ~~parties~~ Borrower authorizes each Lender to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note disclose to any ~~Federal Reserve Bank~~ Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in ~~accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting~~ such 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 's possession concerning the Borrower ~~all~~ and its Affiliates that has been delivered to such Lender by or ~~any part~~ on behalf of ~~any Loan that such Granting Lender would otherwise be obligated to make to~~ the Borrower pursuant to this ~~Agreement; provided that (i) nothing herein shall constitute a commitment~~ Agreement or which has been delivered to such Lender 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 on behalf of the ~~Granting Lender to the same extent, and as if,~~ Borrower in connection with such ~~Loan were made by such Granting~~ Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper 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 10.6(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 's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement, provided that neither the Administrative Agent ~~(which consent~~ nor any Lender shall ~~not be unreasonably withheld)~~ provide to any ~~financial institutions providing liquidity and/or credit support to~~ Transferee or ~~for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis~~ prospective Transferee 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. This paragraph (g) may not be amended without the written consent of the ~~Required Lenders,~~ Confidential Information unless such person shall have previously executed a Confidentiality Agreement in the ~~Borrower and any SPC with Loans outstanding at the time~~ form of ~~such proposed amendment.~~Exhibit H.

Appears in 2 contracts

Sources: Credit Agreement (KCLC Acquisition Corp), Credit Agreement (Kindercare Learning Centers Inc /De)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more 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 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in -------- accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided -------- that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and, after giving effect to such assignment~~Agent. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(f) shall have occurred and be ~~continuing~~continuing with respect to the Borrower. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names -------- and addresses of the Lenders and the Revolving Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 2 contracts

Sources: Credit Agreement (Lexar Media Inc), Credit Agreement (Lexar Media Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more 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 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, -------- at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(f) shall have occurred and be ~~continuing. For purposes of~~ continuing with respect to the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedBorrower. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the -------- recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes 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 (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 facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper 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 10.6(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. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Coaxial LLC), Revolving Credit Agreement (Insight Communications Co Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or the stated rate of ~~all Lenders pursuant~~ interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans or Reimbursement Obligations, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or ~~unpaid~~unpaid after any applicable grace periods, or shall have been declared or shall have become due and payable upon the occurrence and during the continuation 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans and Letters of Credit outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or ~~Related~~ Approved Fund thereof or, with the consent of the Borrower (~~i) the Administrative Agent and so long as~~ if no ~~Default or~~ Event of Default has occurred and is continuing, ) and the ~~Borrower~~ Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by the Syndication Agent or any ~~assignment~~ of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldits affiliates), 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, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent~~ Borrower or the ~~Issuing Lenders~~ Agents is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such assignment to an Assignee (other than any Lender or any affiliate or ~~Related~~ Approved Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of (a) an assignment of all of a Lender’s 's interests under this ~~Agreement~~Agreement or (b) an assignment to another Lender or an Affiliate of such Assignor), unless otherwise agreed by the ~~Borrower~~ Borrower, the Syndication Agent and the Administrative Agent ~~and~~and (ii) if the Assignor is a Revolving Credit Lender, ~~after giving effect~~ such Assignor's rights and obligations with respect to ~~such assignment, the assigning Lender (if it shall retain any~~ its Revolving Credit Commitment or ~~Loans)~~ any part thereof shall ~~have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans~~be assigned to an Eligible Assignee. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 the rights and obligations theretofore held by it) the rights and obligations of a Lender hereunder with ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the Assignor and the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled~~"cancelled.” " The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $~~3,500~~ 3,000 (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 ▇▇▇▇▇▇ Commercial Paper Inc. or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement Closing~~ Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (Alliance Laundry Corp), Credit Agreement (Alliance Laundry Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ affect the ~~consent~~ Participant as described in (i) of ~~all Lenders pursuant~~ the proviso in Section 9.1, in each case to ~~Section 10. 1~~the extent subject to such participation. 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~~ at anytime that an Event of ~~Default~~Default has occurred and is continuing, 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time upon three Business Days notice to the Administrative Agent assign to any Lender or any ~~Affiliate~~ affiliate thereof or ~~Related~~ any Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower, and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided ~~that no such~~ the consent of the Borrower need not be obtained with respect to any assignment ~~of Term Loans, unless such assignment is~~ to a ~~Person that is a motion picture exhibitor~~ Lender or an any Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldthereof), 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, substantially in the form of Exhibit EI, executed by such ~~Assignee and~~ Assignee, such Assignor and the Administrative Agent (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrower) and delivered to the Administrative Agent 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 of less than $5,000,000~~that, ~~in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (~~other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), after giving effect to such assignment, and to all other assignments by such Assignor and assignments to such Assignee, the sum of the Commitments of and Loans owing to such Assignee, and if such Assignor is assigning only a portion of its Commitments and Loans, of such Assignor, is at least $5,000,000 unless otherwise agreed by the Borrower and the Administrative Agent ~~and, after giving effect to~~ and that no such ~~assignment,~~ assignment shall be effective until executed by the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAdministrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~hereto except for the obligations of the Borrower under Section 9.5, ~~except as~~ which shall survive such assignment). Subject to Sections ~~2.17~~2.18(d) and (e), ~~2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding~~ but notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ 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 ~~Register~~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 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 in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrower or the Administrative Agent) together with payment by the Assignor or the Assignee to the Administrative Agent of a registration and processing fee of $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 The Toronto-Dominion Bank or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 and the Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ 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~~Note, as the case may be, to the order of the ~~Assignor~~ 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 ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (Bear Island Finance Co Ii), Credit Agreement (Bear Island Finance Co Ii)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent, the~~ each Borrower, the ~~Lenders, the Agents~~Lender, all future holders of the Revolving Loans and their respective successors and assigns, except that ~~the~~ no 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. (b) ~~Any~~ The Lender may, without the consent of ~~the~~ any Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a ~~“Participant”~~"PARTICIPANT") participating interests in any Revolving Loan owing to ~~such~~ the Lender, any Commitment ~~of such Lender~~ or any other interest of ~~such~~ the Lender 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 Revolving Loan for all purposes under this Agreement and the other Loan Documents, and the ~~Borrower and the Agents~~ Borrowers 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 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 any Loan Document, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Revolving Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Revolving Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ Each Borrower agrees that if amounts outstanding under this Agreement and the Revolving 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~~ lender under this Agreement, ~~provided~~ PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the ~~Lenders~~ Lender the proceeds thereof as provided in Section ~~10.7(a)as~~ 8.7(a) as fully as if ~~such Participant~~ it were a ~~Lender~~ lender hereunder. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~1.12, ~~2.18~~ 1.13 and ~~2.19~~ 1.14 with respect to its participation in the Commitments and the Revolving Loans outstanding from time to time as if ~~such Participant were~~ it was a ~~Lender~~lender; ~~provided~~ PROVIDED that, in the case of Section ~~2.18~~1.13, such Participant shall have complied with the requirements of ~~said Section~~Sections 1.12, 1.13 and ~~provided~~1.14 and 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~~ the Lender to such Participant had no such transfer occurred; PROVIDED, ~~except to the extent such entitlement to receive a greater amount results from the adoption of~~FURTHER, ~~or a change in any Requirement of Law~~ that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no ~~Default or~~ Event of Default has occurred and is continuing, the ~~Borrower~~ Borrowers shall have the right to object to any Participant, the inclusion of which entity would cause a material increase in the costs to the Borrowers pursuant to Section 1.13. (~~which~~c) The Lender (the "ASSIGNOR") shall have the right at any time or from time to time to assign all or any portion of its rights or obligations under this Agreement to one or more banks or other financial institutions (each, an "ASSIGNEE"), and the Borrowers agree that they each shall execute, or cause to be executed, such documents, including, without limitation, amendments to this Agreement and to any other documents, instruments and agreements executed in ~~each case~~connection herewith as the Lender shall deem reasonably necessary to effect the foregoing. In addition, at the request of the Lender and any such Assignee, the Borrowers shall jointly and severally issue one or more new promissory notes, as applicable, to any such Assignee and, if the Lender has retained any of its rights and obligations hereunder following such assignment, to the Lender, which new promissory notes shall be issued in replacement of, but not in discharge of, the liability evidenced by the promissory notes held by the Lender prior to such assignment and shall reflect the amount of the respective commitments and loans held by such Assignee and the Lender after giving effect of such assignment; PROVIDED, that no such assignment shall occur, unless to an Affiliate of the Lender, without the prior written consent of the Borrowers (which consent of the Borrowers shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), delayed and ~~(ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (~~which consent shall not be ~~unreasonably withheld), to~~ required if 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, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing; PROVIDED, FURTHER, that the Borrowers shall be deemed to have consented to any such assignment in the event the Borrowers have not provided the Bank with a written objection (specifying the grounds therefor) to any such assignment within five (5) Business Days after the Lender has provided written notice to the Borrowers as to such assignment. ~~For purposes~~ Upon the execution and delivery of appropriate assignment documentation, amendments and other documentation required by the Lender in connection with such assignment, and the payment by the -27- Assignee of the ~~minimum assignment amounts set forth in this paragraph~~purchase price agreed to by the Lender and such Assignee, ~~multiple assignments to or by two or more Related Funds~~ such Assignee shall be ~~aggregated~~ a party to this Agreement and ~~for purposes~~ shall have all of the ~~minimum hold amounts~~rights and obligations of the Lender hereunder (and under any and all other guarantees, documents, instruments and agreements executed in connection herewith) to the extent that such rights and obligations have been assigned by the Lender pursuant to the assignment documentation between the Lender and such Assignee, and the Lender shall be released from its obligations hereunder and thereunder to a corresponding extent. Subject to Section 8.17 of this Agreement, the ~~Commitments and Loans~~ Lender may furnish any information concerning the Borrowers in possession of ~~Related Funds~~ the Lender from time to time to perspective Assignees, provided that the Lender shall ~~be aggregated~~require any such perspective Assignees to agree in writing to maintain the confidentiality of such information. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the ~~provisions~~ Lender may at any time pledge all or any portion of ~~this~~ its rights under the Loan Documents (including any portion of the Revolving Note) to any of the 12 Federal Reserve Banks organized under Section ~~concerning assignments~~ 4 of ~~Loans and Notes relate only to absolute assignments and that~~ the Federal Reserve Act, 12 U.S.C. Section 341. No such ~~provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any~~ pledge or ~~assignment by a~~ the enforcement thereof shall release the Lender from its obligations under any of ~~any~~ the Loan ~~or Note to any Federal Reserve Bank in accordance with applicable law~~Documents. (ge) ~~Notwithstanding anything~~ Each Borrower, upon receipt of written notice from the Lender in compliance with this Section 8.6, agrees to issue Revolving Notes 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 (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 facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper 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 10.6(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. This paragraph (gc) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 2 contracts

Sources: Loan and Security Agreement (First Marblehead Corp), Loan and Security Agreement (First Marblehead Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more 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 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the ~~Commitment~~ Revolving Credit Commitments of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an affiliate thereof, by ~~each such other Person~~the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ 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 ~~acceptance~~ 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 ~~such~~ the effective ~~date~~date of an Assignment and Acceptance, the Borrower, at its own expense, ~~upon request,~~ shall execute and (g) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and ~~deliver~~ any prospective Transferee any and all financial information concerning the Loan Parties and their respective affiliates which has been delivered to ~~the Administrative Agent (~~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 ~~exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be,~~ connection with such Lender's credit evaluation of the ~~assigning Lender) a new Revolving Credit Note and/or applicable Term Notes~~Loan Parties and their respective affiliates, as under the ~~case may be,~~ condition that such Transferee or prospective Transferee shall previously have agreed to be bound by the ~~order~~ provisions 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationSection 10.15. (fh) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (International Home Foods Inc), 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 Parent, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10.the 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

Sources: Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark Usa Inc /Tx)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in the ordinary course of business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party or any other Person therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on any Loan, or postpone the date of ~~all Lenders pursuant~~ the final maturity of any Loan, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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~~, 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; and provided, ~~except to the extent such entitlement to receive a greater amount results from the adoption of~~further, ~~or a change in any Requirement of Law~~ that ~~occurs after the~~ each Participant ~~acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose~~ will be treated as a ~~non-fiduciary agent~~ Lender for purposes of the ~~Borrower (~~application of Sections 2.17 and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register2.18. (c) Any Lender (an “"Assignor”") may, in the ordinary course of business and in accordance with applicable law, at any time and from time to time assign to (i) any Lender, (ii) any Lender Affiliate, or ~~any Affiliate or Related Fund thereof or,~~ (iii) with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, (i) no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~10,000,000 and (ii) after such assignment, the sum of (1) the aggregate principal amount of Loans and (2) the Commitments in excess of the ~~case~~ principal amount of ~~any assignment of Revolving Credit Commitments~~Loans to be retained by the Assignor, ~~and~~ if any, shall equal at least $~~1,000,000~~10,000,000, ~~in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 11.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ In addition, if the Assignee is a Non-U.S. Person, such Assignee shall also deliver the documents required under Section 2.15(b). Such Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Percentage arising from the purchase by such Assignee of all or a portion of the ~~minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated~~ rights and ~~for purposes~~ obligations of the ~~minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Assignor. (d) The Administrative Agent shall, on behalf of the 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 (~~the ~~“Register”)~~ Register for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and each Loan Party, the ~~Borrower, each~~ Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~11.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption and~~ Acceptance, (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register on the effective date determined pursuant thereto and (iii) give notice of such acceptance and recordation to the ~~Borrower. On or prior to such effective date,~~ Lenders and 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes 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 (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 facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper 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 10.6(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. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 2 contracts

Sources: Credit Agreement (Pacific Gas & Electric Co), Credit Agreement (Pg&e Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that (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 and (ii) any attempted assignment or transfer by the ~~Agents~~ Borrower without such consent shall be null and ~~each Lender~~void. (b) Any Lender other than any Conduit Lender may, without the consent of the ~~Borrower~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more 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 Commitment~~ the Participation of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would require~~ described in clause (w) of the ~~consent of all Lenders pursuant~~ proviso to Section ~~10. 1~~8.1 that affects such Participant, in each case to the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 8.7 as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.12, ~~2.18~~ 2.13 and ~~2.19~~ 2.14 (and subject to the limitations thereof) with respect to its participation in the ~~Commitments~~ Participations and the Loans outstanding from time to time as if ~~such Participant were~~ 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~~Section 2.13 (including the requirements under Sections 2.13(e), 2.13(f) and 2.13(g) (it being understood that the documentation required under Sections 2.13(e), 2.13(f) and 2.13(g) shall be delivered to the participating Lender)) as if it was a Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to ~~any such Section~~ Sections 2.11, 2.12 or 2.13 (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, except to the extent such entitlement to receive a greater ~~amount~~ payment results from a Change in Law made subsequent to the ~~adoption of, or a change in any Requirement of Law~~ date hereof that occurs after the Participant 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 (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ 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~~ Participations or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ Participation or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent~~ 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”) may, in accordance with applicable law, at any time and from time to time assign to any ~~Lender~~ Person (other than the Borrower or any ~~Affiliate or Related Fund thereof or, with the consent~~ of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor its Affiliates or an ~~Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii~~Ineligible Institution) ~~in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the 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 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 ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a Participation 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower ~~shall not be required for~~ or the Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 8.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Commitment~~ Participation 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 the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan~~Loan or Participation, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Participation evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such ~~Loan,~~ Loan or Participation accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~8.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500~~ 4,000 (~~treating multiple, simultaneous~~ such fee not payable with respect to assignments ~~by or~~ to ~~two or more Related Funds as a single assignment) (except that no~~ an Assignor’s Affiliate and such ~~registration and processing~~ fee ~~shall~~ not to be payable ~~in connection with~~ by the Borrower, except for an assignment ~~by or~~ pursuant to ~~a Barclays Entity~~Section 2.17), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) ~~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 concerning assignments of Loans and Notes relate only to absolute assignments and that~~ such ~~provisions do not prohibit assignments creating security interests in Loans and Notes~~Lender, ~~including, without limitation,~~ including any pledge or assignment by to secure obligations to a ~~Lender of any Loan or Note to any~~ Federal Reserve ~~Bank in accordance with applicable law~~Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 2 contracts

Sources: Revolving Credit Agreement (Bungeltd), Revolving Credit Agreement (Bungeltd)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that (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 and (ii) any attempted assignment or transfer by the ~~Agents~~ Borrower without such consent shall be null and ~~each Lender~~void. (b) Any Lender other than any Conduit Lender may, without the consent of the ~~Borrower~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more 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 Commitment~~ the Participation of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~L▇▇▇▇▇’s rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would require~~ described in clause (w) of the ~~consent of all Lenders pursuant~~ proviso to Section ~~10. 1~~8.1 that affects such Participant, in each case to the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 8.7 as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.12, ~~2.18~~ 2.13 and ~~2.19~~ 2.14 (and subject to the limitations thereof) with respect to its participation in the ~~Commitments~~ Participations and the Loans outstanding from time to time as if ~~such Participant were~~ 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~~Section 2.13 (including the requirements under Sections 2.13(e), 2.13(f) and 2.13(g) (it being understood that the documentation required under Sections 2.13(e), 2.13(f) and 2.13(g) shall be delivered to the participating Lender)) as if it was a Lender, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to ~~any such Section~~ Sections 2.11, 2.12 or 2.13 (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, except to the extent such entitlement to receive a greater ~~amount~~ payment results from a Change in Law made subsequent to the ~~adoption of, or a change in any Requirement of Law~~ First Amendment and Restatement Effective Date that occurs after the Participant 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 (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ 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~~ Participations or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ Participation or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent~~ 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”) may, in accordance with applicable law, at any time and from time to time assign to any ~~Lender~~ Person (other than the Borrower or any ~~Affiliate or Related Fund thereof or, with the consent~~ of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor its Affiliates or an ~~Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii~~Ineligible Institution) ~~in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the 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 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 ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a Participation 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower ~~shall not be required for~~ or the Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 8.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Commitment~~ Participation 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 the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan~~Loan or Participation, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan or Participation evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such ~~Loan,~~ Loan or Participation accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~8.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500~~ 4,000 (~~treating multiple, simultaneous~~ such fee not payable with respect to assignments ~~by or~~ to ~~two or more Related Funds as a single assignment) (except that no~~ an Assignor’s Affiliate and such ~~registration and processing~~ fee ~~shall~~ not to be payable ~~in connection with~~ by the Borrower, except for an assignment ~~by or~~ pursuant to ~~a Barclays Entity~~Section 2.17), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) ~~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 concerning assignments of Loans and Notes relate only to absolute assignments and that~~ such ~~provisions do not prohibit assignments creating security interests in Loans and Notes~~Lender, ~~including, without limitation,~~ including any pledge or assignment by to secure obligations to a ~~Lender of any Loan or Note to any~~ Federal Reserve ~~Bank in accordance with applicable law~~Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant L▇▇▇▇▇, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

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 ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Agent, all future holders of the ~~Loans~~ Notes and their respective successors and assigns, except that the Borrower ~~may~~ shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Borrower,~~ its commercial banking business and in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan ------------ owing to such Lender, any Note held by such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable thereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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,~~ 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, in purchasing such participating interest, -------- such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender -------------- hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of ~~Sections~~ Section 2.17, Section 2.18 and Section 2.19 with respect to its ------------ ------------ ------------ participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of Section 2.18, such -------- ------------ Participant shall have complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~(an “Assignor”)~~ may, in the ordinary course of its commercial banking business and in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld)Agent, to an additional ~~bank,~~ bank or financial institution ~~or other entity~~ (an “"Assignee”") all or any -------- part of its rights and obligations under this Agreement and the Notes pursuant to ~~an Assignment and Assumption~~a Commitment Transfer Supplement, substantially in the form of Exhibit EO, --------- executed by such ~~Assignee and~~ Assignee, such ~~Assignor (~~assigning Lender and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an affiliate thereof, by the Borrower and ~~such other Persons)~~ the Agent and delivered to the ~~Administrative~~ Agent for its acceptance and recording in the Register; provided that no any such assignment ~~to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall~~ must be in an a minimal amount equal to the lesser of (A) $2,000,000 and (B) the aggregate ~~principal amount~~ Commitments of ~~less than $5,000,000,~~ such Lender then in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitieseffect. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such ~~Assignment and Assumption~~Commitment Transfer Supplement, (x1) the Assignee thereunder shall be a party hereto and, to the extent provided in such ~~Assignment and Assumption~~Commitment Transfer Supplement, have the rights and obligations of a Lender hereunder with ~~Commitments and/or Loans~~ a Commitment as set forth ~~therein,~~ therein and (y2) the ~~Assignor thereunder shall~~assigning Lender thereunder, to the extent provided in such ~~Assignment and Assumption~~Commitment Transfer Supplement, shall be released from its obligations under this Agreement (and, in the case of ~~an Assignment and Assumption~~ a Commitment Transfer Supplement 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~~, except as to Sections~~ ; provided that -------- the provisions of Section 2.17, ~~2.18 and 10.5 in respect of the period prior to such effective date~~ Section 2.18, Section 2.19 and Section ~~10.14~~9.5 shall ------------ ------------ ------------ ----------- continue to benefit such assigning Lender to the extent required by such Sections). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The ~~Administrative~~ Agent ~~shall~~shall maintain, ~~on behalf of the Borrower, maintain~~ at its address referred to in Section ~~10.2~~ ------- 9.2, a copy of each ~~Assignment and Assumption~~ Commitment Transfer Supplement delivered to it and a --- register (the “"Register”") for the recordation of the names and addresses of the -------- Lenders and the ~~Commitment~~ Commitments of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Agent and the Lenders ~~shall~~ may treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of ~~an Assignment and Assumption~~ a Commitment Transfer Supplement executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an affiliate thereof, by ~~each such other Person~~the Borrower and the Agent) together with payment to the ~~Administrative~~ Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the ~~acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative~~ Agent shall ~~(i)~~ promptly accept such ~~Assignment and Assumption and (ii)~~ Commitment Transfer Supplement and, on the effective date determined pursuant ~~thereto~~ thereto, shall record the information contained therein in the 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, ~~upon request,~~ shall execute and deliver to the ~~Administrative~~ Agent (in exchange for the Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes, as the case may be,~~ Note of the assigning ~~Lender~~Lender marked "Canceled") a new Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment ~~and/or applicable~~ or Term ~~Loans~~Loan, as the case may be, assumed ~~or acquired~~ by it such Assignee pursuant to such ~~Assignment and Assumption~~ Commitment Transfer Supplement and, if the ~~Assignor~~ assigning Lender has retained a Revolving Credit Commitment ~~and/or~~ or Term ~~Loans, as the case may be, upon request~~Loan hereunder, a new Revolving Credit Note ~~and/or~~ or Term ~~Notes~~Note, as the case may be, to the order of the ~~Assignor~~ assigning Lender in an amount equal to the Revolving Credit Commitment ~~and/or applicable~~ or Term ~~Loans~~Note, as the case may be, retained by it hereunder. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the ~~Note or~~ Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) ~~For avoidance~~ 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 ~~doubt,~~ the ~~parties~~ Borrower pursuant to this Agreement ~~acknowledge that~~ or which has been delivered to such Lender by or on behalf of the ~~provisions~~ Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this ~~Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not~~ Agreement. (g) Nothing herein shall prohibit ~~assignments creating security interests in Loans and Notes, including, without limitation,~~ any ~~pledge~~ Lender from pledging or ~~assignment by a Lender of~~ assigning 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (College Television Network Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of the final maturity of the Loans, release all ~~Lenders pursuant~~ or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantor from their obligation under the Guarantee and Collateral Agreement in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ section 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”) may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 2,500,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), and, after giving effect thereto, the Assignor shall have Commitments and Loans aggregating at least $2,500,000, in each case unless otherwise agreed by the Borrower and the Administrative ~~Agent and, after giving effect to such assignment~~Agent. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower ~~shall not be required for~~ or the Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~subsection 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment by the Assignor and/or Assignee to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Ifco Systems Nv)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (and any attempted assignment or transfer by the ~~Agents~~ Borrower without such consent shall be null and ~~each Lender~~void). Nothing in this Agreement, express or 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 reason of this Agreement. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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, ; 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of the Borrower (~~i) the Administrative Agent and~~ but only so long as no ~~Default or~~ Event of Default ~~has~~ shall have occurred and is be continuing, ) and the ~~Borrower~~ Administrative Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to ~~an additional bank, financial institution or~~ any other ~~entity~~ Eligible Assignee (an ~~“Assignee”~~"As- signee") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed -------- by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~5.0 million, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower ~~shall not be required for~~ or the Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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 no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee of such Lender as a party hereto. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) The Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (American Pharmaceutical Partners Inc /Ca/)

Successors and Assigns; Participations and Assignments. (ai) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the ~~Lenders, the Agents, all future holders of the Loans~~ Lender and their respective successors and assigns, except that 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. (bii) ~~Any~~ The Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Borrower,~~ its business and in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions~~ banks or other entities (~~each, a “Participant”~~"PARTICIPANTS") participating interests in ~~any Loan owing to such Lender, any~~ its Commitment ~~of such Lender~~ or its Loans or any other interest of ~~such~~ the Lender hereunder and under the other ~~Loan Documents~~Credit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). 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 Loan~~ the Loans for all purposes under this Agreement and the other ~~Loan~~ Credit Documents, and the Borrower ~~and the Agents~~ 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 and the other ~~Loan~~ 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 any ~~Loan~~ Credit Document, or any consent to any departure by any ~~Loan~~ Credit Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ directly forgive any principal of the ~~consent~~ Loans or reduce the stated rate, or forgive any portion, or postpone the date for the payment, of ~~all Lenders pursuant~~ any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the aggregate amount of the Commitment or postpone the date of the final scheduled maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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 the Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a . (iii) The Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided thatmay, in the ~~case~~ ordinary course of ~~Section 2.18, such Participant shall have complied with the requirements of said Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Affiliate (with the consent of the Borrower if any increased costs would result therefrom) of the Lender ~~or any Affiliate or Related Fund thereof~~ or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which ~~case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent~~ shall not be unreasonably withheld, it being understood that, without limitation, the Borrower shall have the right to withhold its 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~~a bank or fund that is regularly engaged in making, purchasing or investing in loans or securities or financial institution ~~or other entity~~ (an ~~“Assignee”~~"ASSIGNEE") all or any part of its rights and obligations under this Agreement and the other Credit Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EF to the WKI Credit Agreement, with such changes thereto as are appropriate for this Credit Agreement, executed by such ~~Assignee and such Assignor~~ Assignee, the Lender (and, ~~where~~ in the ~~consent~~ case of an Assignee that is not an Affiliate of the Lender, by the Borrower), PROVIDED that, except in the case of an assignment of all of the Lender's interests under this Agreement, unless otherwise agreed to by the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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~~Affiliate of the Lender) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, ~~delivery, acceptance~~ delivery and ~~recording~~acceptance, 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 the Lender hereunder with ~~Commitments and/or Loans~~ a Commitment as set forth ~~therein,~~ 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 assigning Lender's rights and obligations under this Agreement, ~~such Assignor~~ the assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Agreement to the contrary, the consent of the Borrower shall not be required for any assignment that occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 11.5 of the WKI Credit Agreement shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 continuing with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. ~~On or prior~~ In the case of any assignment by the Lender pursuant to ~~such effective date~~this paragraph (iii) of less than all of its interest under this Credit Agreement, the Borrower, ~~at its own expense, upon request,~~ the Lender and the Assignee shall ~~execute and deliver~~ cooperate 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties make appropriate amendments to this Credit Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 party hereto hereby agrees that no SPC shall be liable customary provision 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentmultiple lenders hereunder.

Appears in 1 contract

Sources: Credit Agreement (Wki Holding Co Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 ~~and~~ or 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by any Agent and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term ~~Loans, unless such assignment is to a Person that is a motion picture exhibitor~~ Loans after the termination or ~~an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent~~ expiration of the ~~Borrower), and (ii) in the case of any assignment of the Revolving Credit~~ Term Loan Commitments~~, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED (an "Assignment and Acceptance"), executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower,~~ Borrower or the Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $~~5,000,000,~~ 1,000,000 (in the case of ~~any assignment~~ assignments in respect of ~~Revolving Credit Commitments, and~~ the Term Loan Facility) or $~~1,000,000,~~ 3,000,000 (in the case of ~~any assignment~~ assignments in respect of ~~Term Loans~~ the Revolving Credit Facility) (other ~~than~~ than, in each case, in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by the Borrower and the Administrative Agent~~ ) and, after giving effect ~~to such assignment~~thereto, the assigning Lender (if it shall retain any ~~Revolving Credit Commitment~~ Commitments or Loans) shall have Commitments and Loans aggregating at least $~~5,000,000,~~ 1,000,000 (in the case of ~~Revolving Credit Commitments, and~~ assignments in respect of the Term Loan Facility) or $~~1,000,000,~~ 3,000,000 (in the case of assignments in respect of the ~~Term Loans~~Revolving Credit Facility), in each case, unless otherwise agreed by the Borrower and the Administrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by ~~Section 10.6(c~~clause (c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $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 ~~Barclays Entity~~Lehman Entity or (z) in the case of an Assignee which is already a L▇▇▇▇▇ or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and participations, and that such provisions do not prohibit assignments creating only security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Brookdale Senior Living Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the obligations of Sections 2.18, 2.20 and 2.21) with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided ~~that~~that a Participant shall not be entitled to the benefits of any such Section unless the Borrower is notified of the participation sold to such Participant and, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ 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, except~~ occurred and the aggregate amount of any payments payable under any such Section to the ~~extent~~ transferor Lender and its Participant shall not exceed the amount of such ~~entitlement~~ payments to ~~receive a greater amount results from~~ which the ~~adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable~~ transferor Lender would have been entitled had it not sold such participation. ~~Each Lender that sells a participation shall~~Except as set forth in this Section 10.6(b), ~~acting solely for this purpose as a non-fiduciary agent of~~ the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 not have any obligation ~~to disclose all~~ or ~~any portion of the Participant Register~~ duty to any ~~Person (including the identity of any Participant or any information relating to a~~ Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~1,000,000), in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be ~~continuing~~continuing and for which notice (other than in the case of an Event of Default under Section 8(f)) shall have been given to the Borrower. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~2,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (National Financial Partners Corp)

Successors and Assigns; Participations and Assignments. ~~(a)~~ This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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~~. (b)~~ . Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.21, such Participant shall have complied with the requirements of said ~~Section,~~ 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~~, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in~~ . Any Lender other than any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Conduit Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $~~1,000,000, in ~~the~~ each case ~~of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d)~~ Section 10.6(c). The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) . Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~1,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower~~effective date determined pursuant thereto. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ . The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle (an “SPC”)~~above. Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that neither Holdings nor the Borrower may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require ~~the consent of all Lenders pursuant to Section 10.~~the 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.10, ~~2.18~~ 2.11, 2.12 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of ~~Section 2.18~~Sections 2.12 and 2.16, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof or, with the written consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Commitments, the ~~Borrower~~ written consent of the Issuing Lenders (which, in each case, shall not be unreasonably withheld or delayed) (provided (y) that no such consent need be obtained by either of the Arrangers or any of their respective Affiliates with respect to any assignment by either of them and (z) that the consent of the Borrower need not be obtained with respect to any assignment of Tranche B Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EA, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any ~~affiliate~~ Affiliate or Related ~~Fund thereof)~~ Fund), in the case of an assignment of Revolving Commitments and/or Revolving Loans, shall be in an aggregate principal amount of less than $~~5,000,000~~5,000,000 or, in the case of ~~any assignment~~ Tranche B Term Loan, shall be in an aggregate principal amount of ~~Revolving Credit Commitments~~less than $1,000,000 (in each case, ~~and $1,000,000, in the case of any assignment of Term Loans (~~other than in the case of an assignment of all of a Lender’s interests under this Agreement), and after giving effect thereto, the Assignor, in the case of an assignment of Revolving Commitments and/or Revolving Loans, shall have Revolving Commitments and/or Revolving Loans aggregating at least $5,000,000 and, in the case of an assignment of Tranche B Term Loans, shall have Tranche B Term Loans aggregating at least $1,000,000, in each case unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.10, ~~2.18~~ 2.11, 2.12 and ~~10.5~~ 9.4 in respect of the period prior to such effective ~~date~~ date), and (z) the assignee shall comply with Section ~~10.14~~2.16 (f). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be ~~conclusive, in~~ presumptive evidence of the ~~absence of manifest error~~amounts so entered, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.7(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $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 ~~connection~~ 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 ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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,~~ Notes of the assigning Lender) a new ~~Revolving Credit Note and/or applicable Term Notes, as the case may be,~~ Notes to the order of such Assignee 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 to such Assignment and ~~Assumption~~ 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 order of the Assignor 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.7 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other ~~indebtedness~~ Debt of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~9.7(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. This ~~paragraph (g~~Section 9.7(g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Great Lakes Dredge & Dock Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (ba) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more 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 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~▇▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The ~~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 Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of of, and subject to the limitations of, Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time and such other interest as if 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant 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 (and such agency being solely for tax purposes)~~Borrowers, shall maintain a register ~~in the United States~~ 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~~ Revolving Credit 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 ~~any~~ such ~~Commitment~~ Revolving Credit Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent manifest error~~conclusive, 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~~. (cb) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative ~~Agent~~ Agent, the Issuing Lender (other than with respect to assignments of Term Loans) and, other than upon the occurrence and ~~so long as no~~ during the continuance of a Default or Event of ~~Default has occurred and is continuing~~Default, the Borrower (which, in each case, shall not be unreasonably withheld or delayed~~) (~~); provided that ~~no such consent need~~ the Borrower shall be ~~obtained with respect~~ deemed to have consented to any such assignment and delegation of Term ~~Loans,~~ Loans unless ~~such assignment is~~ it shall object thereto by notice to ~~a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require~~ the ~~consent of the Borrower), and~~ Administrative Agent within ten (ii10) ~~in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld)~~Business Days after having received notice thereof, to an additional bank, financial institution or or, notwithstanding any provision of Section 2.20 to the contrary, other entity (in each case, other than a natural person) (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Administrative Agent, the ~~Administrative Agent~~ Issuing Lender or the ~~Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by ~~the Borrower and~~ such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, Related Fund or any Affiliate of a Lender or ~~any affiliate or~~ Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000~~2,000,000 (or, in the case of any ~~assignment of Revolving Credit Commitments~~Term Loans, ~~and~~ $~~1,000,000~~1,000,000 and, in the case of ~~any assignment~~ Revolving Credit Loans denominated in a Alternative Currency, the smallest amount of ~~Term Loans~~ such Alternative Currency that has a Dollar Equivalent in excess of $2,000,000) (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 the Administrative ~~Agent and~~Agent; provided further that, after giving effect to such assignment, the ~~assigning Lender (if it shall retain any~~ aggregate principal amount of such Assignor’s Revolving Credit Commitment or ~~Loans)~~ Revolving Credit Loans or Term Loans shall ~~have Commitments and Loans aggregating~~ be at least $~~5,000,000~~2,000,000 (or, in the case of Revolving Credit ~~Commitments~~Loans denominated in an Alternative Currency, ~~and~~ the smallest amount of such Alternative Currency that has a Dollar Equivalent in excess of $~~1,000,000,~~ 2,000,000) (other than in the case of an assignment to a Related Fund or to an Affiliate of such Assignor or of all of a Lender’s interests under this Agreement), unless otherwise agreed by the ~~Term Loans. Any such assignment need not be ratable as among~~ Borrower and the ~~Facilities~~Administrative Agent. Upon such execution, delivery, acceptance and 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 Revolving Credit Commitments and/or Revolving Credit Loans 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 2.17~~Section 2.14, ~~2.18~~ 2.15 and ~~10.5 in~~ 10.5); provided however, if the Borrower or any Affiliate thereof shall be an Assignee, the Loans acquired by such Assignee shall, immediately upon such acquisition and without any further act or deed by such Assignee, the Borrower, the Administrative Agent or any other Person, be deemed cancelled and, with respect to an assignment of ~~the period prior~~ Term Loans to such ~~effective date and~~ Assignee pursuant to this Section ~~10.14~~10.6(c)~~. Notwithstanding any provision of this Section~~, the ~~consent~~ provisions of ~~the Borrower~~ Section 2.13 shall not ~~be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing~~apply. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more Related Funds shall be ~~aggregated and for~~ aggregated. For the purposes of the minimum ~~hold amounts, the Commitments~~ Revolving Credit Commitment and Loans ~~of Related Funds~~ to be held by any Assignor after giving effect to any assignment, such amounts shall be ~~aggregated~~aggregated in respect of each Lender and its Affiliates or Related Fund, if any. (dc) The Administrative Agent shall, on behalf of the ~~Borrower~~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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount (and stated interest) of the Revolving Credit Loans and/or Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (ed) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 any Agent or (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an Affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective date, the Borrower (and, the applicable Foreign Subsidiary Borrower, if any), at ~~its~~ the Borrower’s 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,~~ Loan assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term ~~Loans, as the case may be~~Loan, 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 ~~Restatement Closing~~ Initial Amendment Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fe) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank or other central bank in accordance with applicable law. (gf) 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 (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 Revolving Credit Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Revolving Credit Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment. (g) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign and delegate all or a portion of its Term Loans to any Purchasing Borrower Party in accordance with this paragraph (which assignment and delegation will not constitute a prepayment of Loans for any purposes of this Agreement and the other Loan Documents); provided that: (i) no Event of Default has occurred and is continuing or would result therefrom; (ii) each Auction Purchase Offer shall be made to all Term Lenders of each applicable Class ratably and shall be conducted in accordance with the procedures, terms and conditions set forth in this paragraph and the definition of Auction; (iii) the assigning Lender and Purchasing Borrower Party purchasing such Lender’s Term Loans, as applicable, shall execute and deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Acceptance; (iv) for the avoidance of doubt, the Lenders shall not be permitted to assign or delegate Revolving Cr

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 ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~5,000,000 (or, in the case of ~~any assignment of Revolving Credit Commitments~~the Tranche B Term Facility, ~~and~~ $1,000,000), in ~~the~~ each case ~~of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) The Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Church & Dwight Co Inc /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the~~ Parent, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a ~~“Participant”~~"PARTICIPANT") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 11.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; ~~provided~~ PROVIDED that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said ~~Section~~Section and PROVIDED, ~~and 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an ~~“Assignor”~~"ASSIGNOR") may, in accordance with applicable law, at any time and from time to time assign to any ~~Lender~~ Lender, any affiliate thereof or any ~~Affiliate or~~ Related Fund thereof (any such party a "RELATED PARTY"), in each case, which purchases an aggregate amount of $10,000,000 or less or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed~~) (provided that no such consent need be obtained with respect to any assignment of Term Loans~~), ~~unless such assignment is~~ to a ~~Person that is a motion picture exhibitor~~ Related Party which purchases an aggregate amount in excess of $10,000,000 or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an ~~“Assignee”~~"ASSIGNEE") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this Section 11.6(c), ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; ~~provided~~ PROVIDED that no such assignment to an Assignee (other than any ~~Lender~~ Lender, any affiliate thereof or any ~~affiliate or~~ Related Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 11.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(f) shall have occurred and be ~~continuing. For purposes of~~ continuing with respect to the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedBorrower. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall 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 (the ~~“Register”~~"REGISTER") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~11.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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~~ The Borrower agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes 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 (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 facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper 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 10.6(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. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 1 contract

Sources: Credit Agreement (Buslease Inc /New/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States 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”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender other than any Conduit Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an ~~additional~~ Eligible Assignee or to any other bank, financial institution or other entity approved by the Borrower and the Administrative Agent (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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~1,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit ~~of the Parent~~of, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, ~~without~~ with the consent of the Administrative Agent and the Borrower, which consent will not be unreasonably withheld (provided that no consent from the Administrative Agent or the Borrower shall be required at any time after the occurrence of a Bankruptcy Event), in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, that, without the prior written consent of the Borrower and the Administrative Agent, (i) each such sale shall include an aggregate principal amount of not less than $1,000,000 and (ii) no sale shall result in a Lender holding less than $1,000,000 in aggregate principal amount of the Loans (other than in the case of a sale of all of a Lender’s interests under this Agreement). 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 109. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.10 and ~~2.19~~ 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing~~the Borrower, ~~the Borrower (which~~which consent, in each case, shall not be unreasonably withheld or ~~delayed)~~ delayed (provided that (i) no such consent need be obtained ~~with respect to~~ by any ~~assignment~~ Farallon Entity for a period of ~~Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require~~ 180 days following the ~~consent of the Borrower),~~ Original Closing Date and (ii) in no consent from the ~~case~~ Borrower or Administrative Agent shall be required at any time after the occurrence of ~~any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld~~a Bankruptcy Event), 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, substantially in the form of Exhibit EJ (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Agents is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that no~~ that, without the prior written consent of the Borrower and the Administrative Agent, (i) each such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund~~ Affiliate thereof) shall be include an assignment of not less than $1,000,000 in aggregate principal amount and (ii) no such assignment shall result in an Assignor holding less than $1,000,000 in aggregate principal amount of ~~less than $5,000,000, in~~ the ~~case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term~~ Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.10, ~~2.18~~ 2.11 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall furnish the Borrower a copy of the Register and the notice information for each Lender, as requested by the Borrower from time to time. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ~~Barclays Entity~~Farallon 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), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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,~~ Notes of the assigning Lender) a new ~~Revolving Credit~~ Note ~~and/or applicable Term Notes, as the case may be,~~ or Notes 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,~~ Loans assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained ~~a Revolving Credit Commitment and/or Term~~ any Loans, as the case may be, upon request, a new ~~Revolving Credit Note and/or Term Notes, as the case may be,~~ Notes 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,~~ Loans retained by it hereunder. Such new Note or ~~Notes~~ Notes, with respect to the Term Loans, shall be dated the ~~Restatement~~ Original Closing ~~Date~~ Date, and, with respect to the Advances, shall be dated the Closing Date, and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Mission Resources Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (and any attempted assignment or transfer by the ~~Agents~~ Borrower without such consent shall be null and ~~each Lender~~void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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, including Sections 2.19(d) and (e), 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~~, except~~ . (i) Subject to the ~~extent such entitlement~~ conditions set forth below, any Lender (an "Assignor") may assign to ~~receive a greater amount results from the adoption of~~one or more assignees (each, an "Assignee") all or a ~~change in any Requirement~~ portion of ~~Law~~ its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans at the time owing to it) with the prior written consent of: (A) the Borrower (such consent not to be unreasonably withheld), provided that ~~occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent~~ no consent of the Borrower ~~(and such agency being solely~~ shall be required for tax purposes), maintain a register in the United States 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 an assignment to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest errorLender, ~~and such~~ 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 doubtAffiliate, ~~the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (~~an ~~“Assignor”) may~~Approved Fund, ~~in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof~~ or, ~~with the consent of (i) the Administrative Agent and so long as no Default or~~ if an Event of Default has occurred and is continuing, any other Person; (B) the ~~Borrower (which~~Administrative Agent, ~~in each case, shall not be unreasonably withheld or delayed) (~~provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the ~~Borrower)~~Administrative Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender, a Lender Affiliate or an Approved Fund; and (C) the Issuing Lender, provided that no consent of the Issuing Lender shall be required for an assignment of all or any portion of a Term Loan. (ii) ~~in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent~~ Assignments 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant subject to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than following additional conditions: except in the case of an assignment ~~of all of~~ to a Lender~~’s interests under this Agreement)~~, ~~unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning~~ a Lender ~~(if it shall retain any Revolving Credit Commitment~~ Affiliate or ~~Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case~~ an Approved Fund or an assignment of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal entire remaining amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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~~'s Commitments or Loans under any Facility, the amount of the Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the ~~case may be, to~~ date 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 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,~~ with respect 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 is delivered 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~~ Agent) shall not be obligated to make to the Borrower 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 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 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, less than $1,000,000 unless each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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 Loansotherwise consent, 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. This paragraph~~ (g1) ~~may not be amended without the written~~ no such consent of the ~~Required Lenders~~Borrower shall be required if an Event of Default under Section 8(a) or (f) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its affiliates or Approved Funds, if any. For the ~~Borrower~~ purposes of this Section 10.6, "Approved Fund" means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and ~~any SPC with Loans outstanding at~~ similar extensions of credit in the ~~time~~ ordinary course of ~~such proposed amendment~~its business and that is administered or managed by (a) a Lender, (b) a Lender Affiliate or (c) an entity or an affiliate of an entity that administers or manages a Lender.

Appears in 1 contract

Sources: Credit Agreement (M & F Worldwide Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more 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 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such ~~Lender~~▇▇▇▇▇▇’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The ~~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 Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of of, and subject to the limitations of, Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time and such other interest as if 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant 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 (and such agency being solely for tax purposes)~~Borrowers, shall maintain a register ~~in the United States~~ 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~~ Revolving Credit 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 ~~any~~ such ~~Commitment~~ Revolving Credit Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent manifest error~~conclusive, 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 (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative ~~Agent~~ Agent, the Issuing Lender (other than with respect to assignments of Term Loans) and, other than upon the occurrence and ~~so long as no~~ during the continuance of a Default or Event of ~~Default has occurred and is continuing~~Default, the Borrower (which, in each case, shall not be unreasonably withheld or delayed~~) (~~); provided that ~~no such consent need~~ the Borrower shall be ~~obtained with respect~~ deemed to have consented to any such assignment and delegation of Term ~~Loans,~~ Loans unless ~~such assignment is~~ it shall object thereto by notice to ~~a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require~~ the ~~consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld)~~Administrative Agent within ten Business Days after having received notice thereof, to an additional bank, financial institution or or, notwithstanding any provision of Section 2.20 to the contrary, other entity (in each case, other than a natural person) (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Administrative Agent, the ~~Administrative Agent~~ Issuing Lender or the ~~Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by ~~the Borrower and~~ such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, Related Fund or any Affiliate of a Lender or ~~any affiliate or~~ Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000~~2,000,000 (or, in the case of any ~~assignment of Revolving Credit Commitments~~Term Loans, ~~and~~ $~~1,000,000~~1,000,000 and, in the case of ~~any assignment~~ Revolving Credit Loans denominated in a Alternative Currency, the smallest amount of ~~Term Loans~~ such Alternative Currency that has a Dollar Equivalent in excess of $2,000,000) (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 the Administrative ~~Agent and~~Agent; provided further that, after giving effect to such assignment, the ~~assigning Lender (if it shall retain any~~ aggregate principal amount of such Assignor’s Revolving Credit Commitment or ~~Loans)~~ Revolving Credit Loans or Term Loans shall ~~have Commitments and Loans aggregating~~ be at least $~~5,000,000~~2,000,000 (or, in the case of Revolving Credit ~~Commitments~~Loans denominated in an Alternative Currency, ~~and~~ the smallest amount of such Alternative Currency that has a Dollar Equivalent in excess of $~~1,000,000,~~ 2,000,000) (other than in the case of an assignment to a Related Fund or to an Affiliate of such Assignor or of all of a Lender’s interests under this Agreement), unless otherwise agreed by the ~~Term Loans. Any such assignment need not be ratable as among~~ Borrower and the ~~Facilities~~Administrative Agent. Upon such execution, delivery, acceptance and 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 Revolving Credit Commitments and/or Revolving Credit Loans 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 2.17~~Section 2.14, ~~2.18~~ 2.15 and ~~10.5 in~~ 10.5); provided however, if the Borrower or any Affiliate thereof shall be an Assignee, the Loans acquired by such Assignee shall, immediately upon such acquisition and without any further act or deed by such Assignee, the Borrower, the Administrative Agent or any other Person, be deemed cancelled and, with respect to an assignment of ~~the period prior~~ Term Loans to such ~~effective date and~~ Assignee pursuant to this Section ~~10.14~~10.6(c)~~. Notwithstanding any provision of this Section~~, the ~~consent~~ provisions of ~~the Borrower~~ Section 2.13 shall not ~~be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing~~apply. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more Related Funds shall be ~~aggregated and for~~ aggregated. For the purposes of the minimum ~~hold amounts, the Commitments~~ Revolving Credit Commitment and Loans ~~of Related Funds~~ to be held by any Assignor after giving effect to any assignment, such amounts shall be ~~aggregated~~aggregated in respect of each Lender and its Affiliates or Related Fund, if any. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount (and stated interest) of the Revolving Credit Loans and/or Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 any Agent or (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an Affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective date, the Borrower (and, the applicable Foreign Subsidiary Borrower, if any), at ~~its~~ the Borrower’s 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,~~ Loan assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term ~~Loans, as the case may be~~Loan, 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 ~~Restatement Closing~~ Initial Amendment Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank or other central 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 (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 Revolving Credit Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Revolving Credit Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment. (h) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign and delegate all or a portion of its Term Loans to any Purchasing Borrower Party in accordance with this paragraph (which assignment and delegation will not constitute a prepayment of Loans for any purposes of this Agreement and the other Loan Documents); provided that: (i) no Event of Default has occurred and is continuing or would result therefrom; (ii) each Auction Purchase Offer shall be made to all Term Lenders of each applicable Class ratably and shall be conducted in accordance with the procedures, terms and conditions set forth in this paragraph and the definition of Auction; (iii) the assigning Lender and Purchasing Borrower Party purchasing such Lender’s Term Loans, as applicable, shall execute and deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Acceptance; (iv) for the avoidance of doubt, the Lenders shall not be permitted to assign or delegate Revolving Credit

Appears in 1 contract

Sources: 2018 Refinancing Amendment (Sba Communications Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that (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 and (ii) any attempted assignment or transfer by the ~~Agents~~ Borrower without such consent shall be null and ~~each Lender~~void. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (other than the Borrower or any of its Affiliates or a natural Person) (each, a “Participant”) participating interests in any Loan owing to such Lender, ~~any~~ the Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would require~~ described in clause (i) of the ~~consent of all Lenders pursuant~~ proviso to Section ~~10. 1~~8.1 that affects such Participant, in each case to the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 8.7 as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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~~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 was a 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, except to the extent such entitlement to receive a greater ~~amount~~ payment results from a Change in Law made subsequent to the ~~adoption of, or a change in any Requirement of Law~~ date hereof that occurs after the Participant 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 (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ 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 or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ Commitment, or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent~~ 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”) may, in accordance with applicable law, at any time and from time to time assign to any ~~Lender~~ Person (other than the Borrower or any ~~Affiliate or Related Fund thereof or, with the consent~~ of (iits Affiliates) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the 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 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 (x) any assignment to a Person that is not a Lender or a Lender Affiliate or (y) any assignment of a Commitment 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 ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower ~~shall not be required for~~ or the Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 8.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the 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 the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~8.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500~~ 4,000 (~~treating multiple, simultaneous~~ such fee not payable with respect to assignments ~~by or~~ to ~~two or more Related Funds as a single assignment) (except that no~~ an Assignor’s Affiliate and such ~~registration and processing~~ fee ~~shall~~ not to be payable ~~in connection with~~ by the Borrower, except for an assignment ~~by or~~ pursuant to ~~a Barclays Entity~~Section 2.18), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank or any other central bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Revolving Credit Agreement (Bunge LTD)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it 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~~Section and, ~~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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States 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”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or ~~any Affiliate~~ more Eligible Assignees all or ~~Related Fund thereof or, with~~ a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment or the ~~consent of~~ Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment or the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000, unless each of the Administrative Agent ~~and~~ and, so long as no ~~Default or~~ Event of Default has occurred and is continuing, the Borrower otherwise consents (~~which, in~~ each ~~case, shall~~ such consent not to be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), ~~and~~ (ii) ~~in the case of any~~ each partial assignment shall be made as an assignment of ~~the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any~~ a proportionate part of ~~its~~ all the assigning Lender’s rights and obligations under this Agreement ~~pursuant~~ with respect to ~~an Assignment and Assumption, substantially in~~ the ~~form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent~~ Loan or the ~~Issuing Lenders is required pursuant~~ Commitment assigned and (iii) the parties to ~~the foregoing provisions, by the Borrower~~ each assignment shall execute and ~~such other Persons) and delivered~~ deliver to the Administrative Agent ~~for its~~ an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender and assignee Lender, (ii) 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed thereof by ~~the Borrower and~~ the Administrative Agent ~~and~~pursuant to paragraph (c) of this Section, ~~after giving effect~~ (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such ~~assignment~~assignee Lender is a Non-U.S. Lender, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any compliance by such ~~assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording~~Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by 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~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except as to Sections 2.17~~2.15, ~~2.18~~ 2.16 and ~~10.5 in respect of the period prior to such effective date and Section 10.14~~9.5). ~~Notwithstanding any provision~~ Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 paragraph (b) of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the ~~Borrower~~ Borrowers may not assign or transfer any of ~~its~~ their rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers or the Agents, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the ~~Borrower~~ Borrowers and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The ~~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 Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The ~~Borrower and each Lender~~ Borrowers also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such ~~Participant~~ Participants shall have complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or ~~Related~~ Approved Fund ~~thereof~~ of any Lender or, with the consent of the Borrowers, (iif the Assignee will be a Revolving Credit Lender) the Issuing Lender and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrowers, (if the Assignee will be a Revolving Credit Lender) the Issuing Lender or the Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the ~~Borrower~~ Borrowers, (if the Assignee will be a Revolving Credit Lender) the Issuing Lender and such other Persons) and delivered to the Administrative Agent 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~~ Approved Fund ~~thereof~~of any Lender) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the ~~Borrower~~ Borrowers and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or 108 not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender to the Administrative Agent for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate or Approved Fund of any Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 ~~Borrower~~Lenders and the Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at ~~its~~ 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Senior Credit Agreement (Abry Holdings Iii Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of ~~all Lenders~~ the Lender from whom such Participant purchased such participation pursuant to ~~Section 10.~~Section 110.1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent and ~~so long as no Default or Event~~ the written consent of ~~Default has occurred and is continuing,~~ the ~~Borrower~~ Issuing Lender (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 any of its Affiliates and (y) the consent of the Borrower need not be obtained with respect to any assignment if an Event of ~~Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment~~ Default shall ~~require the consent of the Borrower),~~ have occurred and ~~(ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not~~ be ~~unreasonably withheld~~continuing), to an additional bank, financial institution or other entity that is not a competitor of the Borrower or its Subsidiaries (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that ((i) no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000~~2,500,000 and (ii) after giving effect thereto, the assigning Lender shall have Commitments and Loans aggregating at least $2,500,000, unless otherwise agreed by the Borrower and the Administrative Agent (in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (~~other than in the case of an assignment of all of a Lender’s 's interests under ~~this Agreement~~the Facility), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 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 2.17~~Section 2.15, ~~2.18~~ 2.16 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by or to ~~or by~~ two or more Related ~~Funds shall~~ Funds, or to two or more funds that will be ~~aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds after giving effect to such assignments, shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds, or to two or more funds that will be Related Funds after giving effect to such assignments, as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ 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 ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a ~~Revolving Credit Commitment and/or Term Loans, as the case may be~~Commitment, 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Parker Drilling Co /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower also 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E,~~ Acceptance executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions, by the Borrower and such other Persons)~~ this paragraph and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 10,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent ~~and,~~ and provided further that each Lender must retain a Commitment of not less than $10,000,000 (if it retains any Commitment) after giving effect to ~~such~~ any assignment. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 7(f) shall have occurred and be ~~continuing. For purposes of~~ continuing with respect to the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedBorrower. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) ~~For avoidance~~ 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 ~~doubt,~~ the ~~parties~~ Borrower pursuant to this Agreement ~~acknowledge that~~ 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, so long as such Transferee is informed of the confidentiality provisions of ~~this~~ Section ~~concerning assignments~~ 9.14 and agrees that by its acceptance of ~~Loans and Notes relate only~~ such information it shall be deemed to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable lawbe bound thereby. (g) ~~Notwithstanding anything~~ Anything herein to the contrary ~~contained herein~~notwithstanding, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle that is managed or administered by such Granting Lender (an “"SPC”"), identified as such in writing from time to time by ~~the~~ such 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 otherwise would ~~otherwise~~ be obligated to make to the Borrower pursuant to ~~this Agreement;~~ Section 2.1 and, in such event, such SPC shall have all rights and benefits of a Lender to the extent of the Loan so provided by it, provided that (i) nothing herein shall constitute a commitment or an assignment or assumption of any portion of such Granting Lender's Commitment to or by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option to make a Loan or otherwise fails to provide all or any part of thereof, such ~~Loan, the~~ Granting Lender shall be remain obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall ~~utilize~~ be deemed to constitute a utilization of the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by ~~such~~ the Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the related Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding ~~commercial paper or other~~ senior indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or similar proceedings under the laws of the United States or any ~~state~~ State thereof. In addition, notwithstanding anything to the contrary contained in this Section ~~10.6(g)~~9.6, any SPC may (Ai) with notice to, but without the prior written consent of, the Borrower ~~and~~ or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to its Granting Lender and (ii) disclose (subject to an agreement by the ~~Granting Lender, or~~ recipient to maintain the confidentiality thereof consistent with the ~~prior written consent~~ requirements of ~~the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld~~Section 9.6(f)) ~~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~~ a 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. This paragraph~~ . (gh) ~~may not be amended without the written consent~~ For avoidance of ~~the Required Lenders~~doubt, the ~~Borrower~~ parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests, including any ~~SPC~~ pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with ~~Loans outstanding at the time of such proposed amendment~~applicable law.

Appears in 1 contract

Sources: Revolving Credit Agreement (Homeside Lending Inc)

Successors and Assigns; Participations and Assignments. (ai) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents, all future holders of the Loans~~ Administrative Agent and their respective successors and assigns, except that 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. (bii) Any Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Borrower,~~ its business and in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other ~~Loan Documents~~Credit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). 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 other ~~Loan~~ Credit Documents, and the Borrower and the ~~Agents~~ 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 and the other ~~Loan~~ 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 any ~~Loan~~ Credit Document, or any consent to any departure by any ~~Loan~~ Credit Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ directly forgive any principal of any Loan or reduce the ~~consent~~ stated rate, or forgive any portion, or postpone the date for the payment, of ~~all Lenders pursuant~~ any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the aggregate amount of the Commitments of any Lender or postpone the date of the final scheduled maturity of any Loan, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 13.7 as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.10 and ~~2.19~~ 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; , provided ~~that, in the case of Section 2.18, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (ciii) Any Lender ~~(an “Assignor”)~~ 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 ~~or Related Fund~~ (with the consent of the Borrower if any increased costs would result therefrom) thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (~~which,~~ which in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case ~~such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent~~ shall not be unreasonably withheld, it being understood that, without limitation, the Borrower shall have the right to withhold its 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~~bank or fund that is regularly engaged in making, purchasing or investing in loans or securities or financial institution ~~or other entity~~ (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Credit Documents pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EF, executed by such ~~Assignee and~~ Assignee, such ~~Assignor~~ assigning Lender (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an Affiliate thereof, by the Borrower and ~~such other Persons~~the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; , provided ~~that~~ that, except in the case of an assignment of all of a Lender's interests under this Agreement, unless otherwise agreed to by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund~~ Affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments and/or Loans~~ a Commitment as set forth ~~therein,~~ 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Agreement to the contrary, the consent of the Borrower shall not be required for any assignment that occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 11.5 shall have occurred and be ~~continuing. For purposes of~~ continuing with respect to the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedBorrower. (db) Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of its Loans to any Federal Reserve Bank in accordance with applicable law. In order to facilitate such pledge or assignment, the Borrower hereby agrees that, upon request of any Lender at any time and from time to time after the Borrower has made its initial borrowing hereunder, the Borrower shall provide to such Lender, at the Borrower's own expense, a promissory note, substantially in the form of Exhibit C-1 or C-2, as the case may be, evidencing the Term Loans and Revolving Credit Loans, respectively, owing to such Lender. (c) The Administrative ~~Agent shall~~Agent, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing such Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Credit 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (ei) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an Affiliate thereof, by ~~each such other Person~~the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 ~~Borrower. On or prior to such effective date,~~ Lenders and 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fe) ~~For avoidance of doubt~~Subject to Section 13.16, the ~~parties~~ Borrower authorizes each Lender to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note disclose to any ~~Federal Reserve Bank~~ Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information in ~~accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting~~ such 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 's possession concerning the Borrower ~~all~~ and its Affiliates that has been delivered to such Lender by or ~~any part~~ on behalf of ~~any Loan that such Granting Lender would otherwise be obligated to make to~~ the Borrower pursuant to this ~~Agreement; provided that (i) nothing herein shall constitute a commitment~~ Agreement or which has been delivered to such Lender 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 on behalf of the ~~Granting Lender to the same extent, and as if,~~ Borrower in connection with such ~~Loan were made by such Granting~~ Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper 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 10.6(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 's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement, provided that neither the Administrative Agent ~~(which consent~~ nor any Lender shall ~~not be unreasonably withheld)~~ provide to any ~~financial institutions providing liquidity and/or credit support to~~ Transferee or ~~for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis~~ prospective Transferee 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. This paragraph (g) may not be amended without the written consent of the ~~Required Lenders,~~ Confidential Information unless such person shall have previously executed a Confidentiality Agreement in the ~~Borrower and any SPC with Loans outstanding at the time~~ form of ~~such proposed amendment.~~Exhibit H.

Appears in 1 contract

Sources: Credit Agreement (Randalls Food Markets Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that neither the Company nor the Borrower may ~~not~~ assign or transfer any of its respective rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other ~~Loan~~ 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 for all purposes under this Agreement and the other ~~Loan~~ Credit Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other ~~Loan~~ 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 any ~~Loan~~ Credit Document, or any consent to any departure by any ~~Loan~~ Credit Party therefrom, except to for those matters specified in clauses (i), (ii) and (iii) of the ~~extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to~~ proviso in Section 109. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ Section 2.20 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any Affiliate ~~or Related Fund~~ thereof or, with the written consent of ~~(i)~~ the Borrower and the Administrative Agent and, in the case of any assignment of Revolving Credit Commitments and ~~so long as no Default or Event of Default has occurred and is continuing~~Revolving Credit Loans only, the ~~Borrower~~ written consent of the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), delayed and ~~(ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent~~ shall not be ~~unreasonably withheld),~~ required in connection with an assignment involving LCPI or any of its Affiliates) 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, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the ~~Issuing Lenders~~ Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund~~ Affiliate thereof~~) shall be in an aggregate principal amount of less than $5,000,000~~, including, without limitation, in the case of any ~~assignment of Revolving Credit Commitments~~Lender that is an investment fund which is regularly engaged in making, ~~and $1,000,000~~purchasing or investing in loans or securities, ~~in the case of~~ any ~~assignment of Term Loans~~ other such fund which is under common (or affiliated) management with such Lender) shall (other than in the case of an assignment of all of a Lender~~’s interests~~ 's rights under this Agreement~~), unless otherwise~~ ) be in an aggregate principal amount of less than $5,000,000 (or such lesser amount as may be agreed to by the Borrower and the Administrative ~~Agent and, after giving effect to such assignment,~~ Agent) and (ii) each partial assignment of any Class of Commitment and/or Loans shall be made as an assignment or a proportionate part of all the assigning ~~Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have~~ Lender's rights and obligations of such Class of Commitments and Loans ~~aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans~~under this Agreement. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 LCPI or any of its Affiliates or (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an Affiliate of a Lender (including, without limitation in the case of any Lender that is an investment fund which is regularly engaged in making, purchasing or investing in loans or securities, any other such fund which is under common (or affiliated) management with such Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 and the Borrower. On or prior to such effective 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~~Note, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or ~~applicable~~ Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or ~~applicable~~ Term Commitment or Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Commitment 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 Commitment or Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Person including, without limitation, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Birch Telecom Inc /Mo)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of ~~all Lenders~~ the Lender from which the Participant purchased its interest pursuant to Section ~~10. 1~~lO.l(i) or (ii). 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of each Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that ~~no such~~ the consent of the Borrower need not be obtained with respect to any assignment of Tranche B Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof or any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ l,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and~~Agent; and provided further that, ~~after giving effect to such assignment~~notwithstanding the foregoing, ~~the assigning Lender~~ (~~if it shall retain~~ i) any ~~Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case~~ assignment of Revolving Credit ~~Commitments,~~ Loans and ~~$1,000,000, in the case~~ Revolving Credit Commitments may be made only to a commercial bank or any other financial institution whose senior unsecured debt rating is at least A-2 by S&P and at least P-2 by Moody's and (ii) no assignment shall be permitted to a competitor of ~~the Term Loans~~▇▇▇ ▇▇▇rower or to any entity (other than a financial institution) that is an affiliate or related entity of any such competitor. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 ~~2.17~~2.18, ~~2.18~~ 2.19 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $~~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 ~~connection~~ the case of (A) an Assignee which is already a Lender or is a Control Investment Affiliate or Related Fund of a Lender or a Person under common management with an a Lender or (B) any assignment made by the Syndication Agent or ~~to a Barclays Entity~~any of its Affiliates), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 Tranche B Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Tranche B 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 Tranche B Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ 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 Tranche B 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 Tranche B Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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, if at any ~~Lender~~ time Bank of America assigns all of its Commitments and Loans pursuant to subsection (~~a “Granting Lender”~~c) ~~may grant to a special purpose funding vehicle (an “SPC”)~~above, ~~identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower~~Bank of America may, ~~the option to provide~~ upon 30 days' notice to the Borrower and the Lenders, resign as Issuing Lender. In the event of any such resignation as Issuing Lender, the Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as Issuing Lender. If Bank of America resigns as Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Lender and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 3.3(c)). (h) Notwithstanding anything to the contrary contained herein, any Lender that is a fund may create a security interest in all or any ~~part~~ portion of ~~any Loan that such Granting Lender would otherwise be obligated~~ the Loans owing to ~~make~~ it and the Notes, if any, held by it to the ~~Borrower pursuant to this Agreement;~~ trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.6, (i) ~~nothing herein~~ no such pledge shall ~~constitute a commitment by~~ release the pledging Lender from any ~~SPC to make any~~ of its obligations under the Loan Documents 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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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 trustee shall not be ~~unreasonably withheld)~~ entitled to exercise any ~~financial institutions providing liquidity and/or credit support to or for~~ of the ~~account~~ rights of a Lender under the Loan Documents even though 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 trustee may have acquired ownership rights 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 the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentpledged interest through foreclosure or otherwise.

Appears in 1 contract

Sources: Credit Agreement (Perkinelmer Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in ~~Section 10.7(a)as~~ subsection 10.7 (a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of ~~Section 2.18~~subsection 2.17, such Participant shall have complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") 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 or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an affiliate thereof, by the Borrower and ~~such other Persons~~the Administrative Agent) and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 2,500,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~subsection 10.6, the 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 assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 8(f) shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the ~~Commitment~~ Commitments of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 of any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an affiliate thereof, by ~~each such other Person~~the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 on the effective date determined pursuant thereto and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, ~~upon request,~~ shall execute and deliver to the Administrative Agent (in exchange for ~~the~~ any Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes, as the case may be,~~ Note of the assigning Lender) a new Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment ~~and/or applicable~~ or portion of the Term ~~Loans~~Loan, as the case may be, assumed ~~or acquired~~ by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ assigning Lender has retained a Revolving Credit Commitment ~~and/or~~ or portion of a Term ~~Loans, as the case may be, upon request~~Loan hereunder, a new Revolving Credit Note ~~and/or~~ or Term ~~Notes~~Note, as the case may be, to the order of the ~~Assignor~~ assigning Lender in an amount equal to the Revolving Credit Commitment ~~and/or applicable~~ or Term ~~Loans~~Loan, as the case may be, retained by it hereunder. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby~~. In~~ . (f) The Loans made by each Lender shall be evidenced by a Note issued by the ~~event that~~ Borrower, substantially in the ~~Administrative Agent has received a Revolving Credit Note and/or a Term Note~~form of Exhibit G-1 or G-2, as the case may be, ~~from~~ payable to the ~~assigning~~ 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 and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Administrative ~~Agent shall promptly return~~ Agent, in exchange for the relevant Notes, new Notes to the ~~Borrower such Note and/or~~ order of the Assignee and, if applicable, the Assignor. Such new Notes ~~for cancellation~~shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. (fg) 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, 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 assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.security

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 Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders or each affected Lender pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any ~~Lender~~ Lender, any lender under the Revolving Credit Facility, or any ~~Affiliate~~ affiliate or Related Fund thereof or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EC, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no consent of the Borrower shall be required for any assignment if any Event of Default has occurred and is continuing; provided, further, 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.13, ~~2.18~~ 2.14 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment~~ unless otherwise agreed to by ~~or to a Barclays Entity~~the Administrative Agent), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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,~~ Notes of the assigning Lender) a new ~~Revolving Credit Note and/or~~ applicable ~~Term Notes, as the case may be,~~ Notes 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,~~ Loans assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ 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,~~ Notes 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,~~ Loans retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Tesoro Corp /New/)

Successors and Assigns; Participations and Assignments. ~~(a)~~ This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Term Loans and their respective successors and assigns, except that 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. (ba) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Term Loan owing to such Lender, any Term Loan Commitment of such Lender or any other interest of such Lender 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 Term Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to ~~Section 10.~~Section 19.1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Term Loan Commitments and the Term Loans outstanding from time to time as if 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, 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. In addition, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each each transferor Lender ~~that sells~~ selling a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations~~ Participant under ~~any Loan Document~~this Section 9.6(b): (i) ~~except to~~ shall keep a register, meeting the ~~extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section~~ requirements of Treasury Regulation section 5f.103-1(c) ), of ~~the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error~~each such Participant, specifying such Participant's entitlement to payments of principal and interest with respect to such participation, 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~~ii) shall ~~have no responsibility for maintaining~~ collect from each such Participant the appropriate forms, certificates and statements described in Section 2.15 (and updated as required by Section 2.15) as if such Participant were a ~~Participant Register~~Lender under Section 2.15. (cb) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or Related Fund thereof or, with the consent of ~~(i)~~ the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that (x) no such consent need be obtained ~~with respect~~ by a ▇▇▇▇▇▇ Entity for assignments to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require Eligible Assignees and (y) the consent of the ~~Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall~~ Borrower need not be ~~unreasonably withheld~~obtained if any Default or Event of Default shall have occurred and be continuing), 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, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the~~ Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Administrative Agent) and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance in the Register, (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 Term Commitments ~~and/or~~ and 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 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.14, ~~2.18~~ 2.15 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more Related Funds shall be ~~aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be~~ aggregated. (dc) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Term Loan Commitment of, and principal amount of the Term Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Term Loans and any Term Notes evidencing such Term Loans recorded therein for all purposes of this Agreement. Any assignment of any Term Loan, whether or not evidenced by a Term Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Term Note shall expressly so provide). Any assignment or transfer of all or part of a Term Loan evidenced by a Term Note shall be registered on the 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; thereupon one or more new Term Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Term 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 's Term Loans) at any reasonable time and from time to time upon reasonable prior notice. (ed) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ~~Barclays Entity~~▇▇▇▇▇▇ 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), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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,~~ Note to the order of such Assignee and 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 to such Assignment and ~~Assumption~~ 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~~Note, as the case may be, to the order of the Assignor and its registered assigns in an amount equal to the ~~Revolving Credit Commitment and/or~~ applicable Term ~~Loans, as the case may be,~~ Loans retained by it hereunder. Such new Term Note or Term Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Term Note or Term Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fe) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Term Loans and Term Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Term Loans and Term Notes, including, without limitation, any pledge or assignment by a Lender of any Term Loan or Term Note to any Federal Reserve Bank in accordance with applicable law. (gf) 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 Term Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Term Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Term Loan, the Granting Lender shall be obligated to make such Term Loan pursuant to the terms hereof. The making of a Term Loan by an SPC hereunder shall utilize the Term Loan Commitment of the Granting Lender to the same extent, and as if, such Term Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~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 Term 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 Term Loans, and (B) disclose on a confidential basis any non-public information relating to its Term 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 Parent, the Borrower or any of their respective Subsidiaries may be disclosed only with the Borrower’s 's prior written consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Term Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Term Loan Agreement (Williams Companies Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more 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 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower and the Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained ~~with respect to any assignment~~ by Lehman Comm▇▇▇▇▇▇ Paper Inc. for a period of ~~Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require~~ 180 days following the ~~consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld~~Closing Date), 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, substantially in the form of Exhibit ED, executed by such ~~Assignee and~~ Assignee, such ~~Assignor~~ Assignor, the Agents (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrower) and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgents. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ 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~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 11.6, the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 8(f) shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ 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 ~~Register~~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 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 in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrower, the Administrative Agent, the Arranger and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $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 Lehman Comm▇▇▇▇▇▇ Paper Inc. or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 and the Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ assigning Lender has retained a Revolving Credit ~~Commitment and/or Term Loans, as the case may be~~Commitment, upon request, a new Revolving Credit Note ~~and/or Term Notes, as the case may be,~~ to the order of the ~~Assignor~~ 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 ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Physician Computer Network Inc /Nj)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund ~~thereof~~ or Control Investment Affiliate of a Lender or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender (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 any of its affiliates and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EE (an "Assignment and Acceptance"), executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (A) no such assignment to an Assignee (other than any Lender or any ~~affiliate or~~ affiliate, Related Fund ~~thereof~~or Control Investment Affiliate of a Lender) shall be in an aggregate principal amount of less than $~~5,000,000,~~ 1,000,000 (in the case of ~~any assignment of Revolving Credit Commitments, and~~ the Term Loan Facility) or $~~1,000,000,~~ 5,000,000 (in the case of ~~any~~ the Revolving Credit Facility), unless (1) otherwise agreed by the Borrower and the Administrative Agent or (2) such assignment ~~of Term Loans (other than in the case of~~ represents an assignment of all of a Lender’s 's interests under this ~~Agreement)~~Agreement and (B) if the Assignor shall retain any Loans or Commitments after giving effect to such assignment, such Loans and Commitments shall, unless otherwise agreed by the Borrower and the Administrative ~~Agent and~~Agent, ~~after giving effect to such assignment, the assigning Lender~~ be in an aggregate principal amount of not less than $1,000,000 (~~if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000,~~ in the case of the Term ~~Loans~~Loan Facility) and $5,000,000 (in the case of the Revolving Credit Facility). Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and ~~recording~~recording in the 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 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~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more affiliates, Related Funds ~~shall be aggregated and for purposes~~ or Control Investment Affiliates of ~~the minimum hold amounts, the Commitments and Loans of Related Funds~~ a Lender shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans and stated interest owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $3,500 (treating multiple, simultaneous assignments by or to two or more affiliates, Related Funds or Control Investment Affiliates of a Lender as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate, Related Fund or Control Investment Affiliate of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Beverly Enterprises Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~TWTC, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the 88 83 date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any affiliate of any Lender or ~~Related Fund thereof~~any Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000~~5,000,000 (or, in the case of ~~any assignment of Revolving Credit Commitments~~the Tranche B Term Facility, ~~and~~ $1,000,000), in ~~the~~ each case ~~of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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, ) except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice~~its obligations under Section 10. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Time Warner Telecom Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that neither of the ~~Borrower~~ Borrowers 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. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the ~~Borrower~~ Borrowers and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to ~~Section 10.~~Section 110.1. ~~The~~ 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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~~Section (including the requirements of Section 2.18(d) or Section 2.18(e) as applicable, as though 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrowers and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained ~~with~~ by any Lehman Entity and (y) the consent of the Borrowers need not be obtain▇▇ ▇▇▇h respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrowers, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the ~~Borrower~~ Borrowers and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or thereof, including any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by the Borrower and the Administrative Agent~~ ) and, after giving effect ~~to such assignment~~thereto, the assigning Lender (if it shall retain any ~~Revolving Credit Commitment~~ commitments or Loans) shall have ~~Commitments~~ commitments and Loans aggregating at least $~~5,000,000, in the case of Revolving Credit Commitments, and $~~1,000,000, in each case, unless otherwise agreed by the ~~case of~~ Borrowers and the ~~Term Loans~~Administrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers marked “"canceled.” ". The Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 (x) in connection with an assignment by or to a ~~Barclays Entity~~Lehman Entity or (y) in the case of an Assignee which is already a Le▇▇▇▇ ▇r is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 ~~Borrower~~Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at ~~its~~ 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement Closing~~ Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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~~Borrowers, the option to provide to the ~~Borrower~~ Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the ~~Borrower~~ 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 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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the ~~Borrower~~ Borrowers 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~~ Borrowers 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~~ any Borrower may be disclosed only with ~~the~~ such Borrower’s 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Delek US Holdings, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (it being understood that the ~~Agents~~ transfer of the rights and ~~each~~ obligations of the Company hereunder to the Successor Subsidiary on the Push-Down Date shall not require the consent of the Administrative Agent or any Lender). (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 72 under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable -------- law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an affiliate thereof, by the Borrower and ~~such other Persons~~the Administrative Agent) and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the 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 assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 8 shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of -------- the Lenders and the ~~Commitment~~ Commitments of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such Loans~~ Loan recorded therein for all purposes of this Agreement~~. Any assignment~~ . (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 $3,500, 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) To the extent requested by any ~~Loan~~Lender, ~~whether or not~~ the Loans made by such Lender shall be evidenced by a Note issued by the Borrower, substantially in the form of Exhibit F-1, F-2, F-3 or F-4, as the case may be, payable to the order of such Lender (or, in the case of any Alternative Note, payable to such Lender or its registered assigns); provided that no such Notes need be issued or -------- delivered until after the Push-Down Date. 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, to the extent requested by the Assignee, 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 ~~effective only upon appropriate entries with~~ dated the Closing Date. (ii) 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 ~~thereto being made~~ 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) substantially in the ~~Register~~form of Exhibit F-3 or F-4, as the case may be (each, 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 2.19(b). 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 ~~a Loan evidenced by a Note~~ 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 ~~Note~~ Alternative Note(s) evidencing such ~~Loan~~Obligation(s), duly endorsed by (or accompanied by a written 74 instrument of assignment or transfer duly executed ~~Assignment~~ by) the Alternative Noteholder thereof, and ~~Assumption;~~ thereupon one or more new ~~Notes~~ Alternative Note(s) in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee(s). No assignment of an Alternative Note and the ~~old Notes~~ Obligations evidenced thereby shall be ~~returned by~~ effective unless it has been recorded in 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 Loans) at any reasonable time and from time to time upon reasonable prior noticeRegister. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fg) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Details Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.07(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.12, ~~2.18~~ 2.13 and ~~2.19~~ 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of ~~Section 2.18~~Sections 2.13 and 2.14, such Participant shall have complied with the requirements of said ~~Section,~~ Sections; 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register~~Register (as defined below); provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, and after giving effect to such assignment, such assigning Lender shall have Commitments and Loans in ~~the~~ an aggregate amount of at least $5,000,000 in each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000,~~ described in ~~the case of any assignment of Term Loans (other than~~ this sentence except in the case of an assignment of all of a Lender’s interests under this Agreement). For purposes of the proviso contained in the preceding sentence, ~~unless otherwise agreed by~~ the ~~Borrower~~ amount described therein shall be aggregated in respect of each Lender and ~~the Administrative Agent and~~its Lender Affiliates, ~~after giving effect~~ if any. The Assignee shall purchase, at par, all Loans and pay all accrued interest and other amounts owing to such ~~assignment,~~ Assignor under this Agreement on or prior to the ~~assigning Lender (if it shall retain~~ date of assignment for any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment ~~need not be ratable as among the Facilities~~pursuant to Section 2.16. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, relinquish its rights (other than its rights under Section 2.13, 2.14, and 9.05 to the extent any claim thereunder relates to an event arising prior to the effective date of such assignment) and be released from its obligations (other than its obligations under Section 8.07 with respect to matters arising prior to the effective date of such assignment) 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 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 9.06, the consent of the Borrower shall not be required for any assignment that occurs after the occurrence and during the continuance of an Event of Default. Notwithstanding the foregoing, any Conduit Lender may assign at any time ~~when any Event of Default shall have occurred and be continuing. For purposes~~ to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 9.06(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.02 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~9.06(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption and~~ Acceptance, (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register on the effective date determined pursuant thereto, and ~~give notice~~ (iii) promptly notify Borrower of ~~such acceptance and recordation to the Borrower. On or prior to such effective 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,~~ receipt 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationAcceptance. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.06 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 to this Agreement for any loss, cost, damage 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Federal Express Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, ~~the Borrower~~Grove Capital, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the ~~Borrower~~ Borrowers may not assign or transfer any of ~~its~~ their rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the ~~Borrower~~ Borrowers and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except for those rights specified in clauses (i) and (ii) of the proviso to Section 10.1, in each case to the extent ~~that~~ subject to such ~~amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1~~participation. The ~~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 Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The ~~Borrower and each Lender~~ Borrowers also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate thereof or ~~Related Fund thereof~~ a Person under common management with or having the same or an affiliated investment advisor as such Lender or, with the consent of ~~(i)~~ the Borrowers and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee and~~ Assignee, such Assignor and the Administrative Agent (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrowers is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrowers) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof or ~~Related Fund thereof~~a Person under common management with, or having the same or an affiliated investment advisor as, such Lender) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the ~~Borrower~~ Borrowers and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ 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 ~~Register~~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 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 in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrowers, the Administrative Agent and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 ~~Borrower~~Lenders and the Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at ~~its~~ 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 to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ 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 ~~Assignor~~ 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 ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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 “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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Grove Investors Capital Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ 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 the ~~Agents~~ Subsidiary Borrower or the Canadian Borrower as permitted by Section 7.3) and ~~each Lender~~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 the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions or other entities~~ 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 and under the other Loan Documents~~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 other Loan Documents~~Agreement, and the ~~Borrower~~ Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and the other Loan Documents~~Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~any Loan Document~~this Agreement, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ 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~~ 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 ~~deemed~~ required to ~~have agreed to share~~ deal directly with one another in respect of, the ~~Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if~~ participation of such ~~Participant were a Lender hereunder~~Participant. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ 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 ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ 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, ~~except~~ no Loan Party shall be required to ~~the extent such entitlement to receive a~~ pay any greater amount ~~results from~~ pursuant to Section 2.18 as a result of the ~~adoption of, or~~ transfer of a ~~change in any Requirement of Law that occurs after the~~ participation to a Participant ~~acquired the applicable participation~~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~~ an agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ 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, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury ~~Regulations~~Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with the Canadian Borrower for purposes of the Income Tax Act (Canada). 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”) ~~may~~shall be permitted to assign, in accordance with applicable law, ~~at any time~~ all or a portion of its Loans and ~~from time~~ Revolving Commitments hereunder to ~~time assign to any Lender or any Affiliate or Related Fund thereof or,~~ an Eligible Assignee (an “Assignee”) with the ~~consent~~ consent, not to be unreasonably withheld, of (a) the Parent Borrower, unless (i) the ~~Administrative Agent and so long as no Default~~ 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, (b) the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower)Administrative Agent, and (iic) ~~in the case of any assignment of the Revolving Credit Commitments, the~~ each Issuing Lenders (which consent 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 Lender pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register; provided~~ relevant Register (it being understood and agreed that no such ~~assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof)~~ Assignee, if it shall not be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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~~ shall deliver to the Administrative Agent ~~and~~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, ~~after giving effect~~ 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 ~~assigning Lender (if it shall retain~~ cost under this Agreement to any ~~Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000,~~ Borrower in the ~~case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities~~foreseeable future. Upon such execution, delivery, acceptance and ~~recording~~recording in the Register pursuant to Section 10.6(d), 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 ~~Commitments~~ 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the ~~Borrower shall not be required for~~ Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrower~~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 (~~the~~ 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 ~~the~~ each Register shall ~~be conclusive~~constitute prima facie evidence of the same, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~the~~ each Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 ~~in the same aggregate principal amount shall~~ may be issued to the designated Assignee, ~~and the old Notes shall be returned~~ if requested 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 Loans) at any reasonable time and from time to time upon reasonable prior notice~~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 US$5,000,000 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~~ Acceptance in conformity with Section 10.6(c), executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 ~~$3,500 (treating multiple~~US$3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fg) 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 ~~assignments creating security interests in Loans and Notes~~the granting of security, ~~including, without limitation,~~ 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) ~~Notwithstanding anything to the contrary contained herein~~above. (i) Each Borrower, ~~any~~ each 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~~ and the Administrative Agent ~~and the Borrower~~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, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Domtar CORP)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or the Funding Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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 73 68 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower and the Funding Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the ~~Administrative~~ Funding Agent 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 of less than $5,000,000~~that, ~~in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement), no such assignment to 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 and, after giving effect to such assignment~~Funding Agent. For purposes of clauses (i) and (ii) of the preceding sentence, the ~~assigning~~ amounts described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. ~~For purposes~~ On the effective date of any Assignment and Acceptance, the Funding Agent shall give notice of the ~~minimum assignment amounts set forth in this paragraph, multiple assignments~~ terms thereof to ~~or by two or more Related Funds shall be aggregated and for purposes of~~ the ~~minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Administrative Agent that is not serving as Funding Agent. (d) The ~~Administrative~~ Funding Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each ~~Agent~~ other Loan Party, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee~~, and~~ . The Funding Agent will promptly send a copy of the ~~old Notes shall be returned by the Administrative Agent~~ Register 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 Loans) at any reasonable time and from time to time upon ~~reasonable prior notice~~request. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the ~~Administrative~~ Funding Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the ~~acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative~~ Funding 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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 “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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

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 ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that (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 and (ii) any attempted assignment or transfer by the ~~Agents~~ Borrower without such consent shall be null and ~~each Lender~~void. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (other than the Borrower or any of its Affiliates or a natural Person) (each, a “Participant”) participating interests in any Loan owing to such Lender, ~~any~~ the Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except ~~to the extent that such~~ any amendment, waiver or consent ~~would require~~ described in clause (w) of the ~~consent of all Lenders pursuant~~ proviso to Section ~~10. 1~~8.1 that affects such Participant, in each case to the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 8.7 as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 limitations thereof) with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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~~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 was a 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, except to the extent such entitlement to receive a greater ~~amount~~ payment results from a Change in Law made subsequent to the ~~adoption of, or a change in any Requirement of Law~~ date hereof that occurs after the Participant 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 (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ 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 or Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ Commitment, or Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent~~ 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”) may, in accordance with applicable law, at any time and from time to time assign to any ~~Lender~~ Person (other than the Borrower or any ~~Affiliate~~ of its Affiliates or ~~Related Fund thereof or, with the consent of (i~~a natural Person) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) the consent of the 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 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 (x) any assignment to a Person that is not a Lender or a Lender Affiliate or (y) any assignment of a Commitment 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 ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate Dollar Equivalent principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower ~~shall not be required for~~ or the Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 8.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the 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 the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~8.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500~~ 4,000 (~~treating multiple, simultaneous~~ such fee not payable with respect to assignments ~~by or~~ to ~~two or more Related Funds as a single assignment) (except that no~~ an Assignor’s Affiliate and such ~~registration and processing~~ fee ~~shall~~ not to be payable ~~in connection with~~ by the Borrower, except for an assignment ~~by or~~ pursuant to ~~a Barclays Entity~~Section 2.18), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 8.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank or any other central bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Revolving Credit Agreement (Bunge LTD)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 109. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said ~~Section~~Section (including the requirements of Section 2.14(d) or Section 2.14(e) as applicable, as though 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldL▇▇▇▇▇ Entity), 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, substantially in the form of Exhibit EC, executed by such Assignee and such Assignor ~~(and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or thereof, including any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement)) and, after giving effect thereto, the assigning Lender (if it shall retain any commitments or Loans) shall have commitments and Loans aggregating at least $1,000,000, in each case, unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.13, ~~2.18~~ 2.14 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity~~), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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,~~ Notes of the assigning Lender) a new ~~Revolving Credit Note and/or~~ applicable Term ~~Notes, as the case may be,~~ Notes 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,~~ Loans assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ 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,~~ Notes 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,~~ Loans retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement Closing~~ Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Delek US Holdings, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or the stated rate of ~~all Lenders pursuant~~ interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans or Reimbursement Obligations, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or ~~unpaid~~unpaid after any applicable grace periods, or shall have been declared or shall have become due and payable upon the occurrence and during the continuation 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, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans and Letters of Credit outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable -------- law, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or ~~Related~~ Approved Fund thereof or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower and the Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent~~ Borrower or the ~~Issuing Lenders~~ Agents is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such -------- assignment to an Assignee (other than any Lender or any affiliate or ~~Related~~ Approved Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the ~~Borrower~~ Borrower, the Syndication Agent and the Administrative Agent ~~and~~and (ii) if the Assignor is a Revolving Credit Lender, ~~after giving effect~~ such Assignor's rights and obligations with respect to ~~such assignment, the assigning Lender (if it shall retain any~~ its Revolving Credit Commitment or ~~Loans)~~ any part thereof shall ~~have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans~~be assigned to an Eligible Assignee. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 the rights and obligations theretofore held by it) the rights and obligations of a Lender hereunder with ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be ~~continuing. For purposes of~~ continuing under Section 8(f) with respect to the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedBorrower. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of -------- the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the Assignor and the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $~~3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment)~~ 3,000 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by ▇▇▇▇▇▇ Commercial Paper Inc. or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 and the Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Alliance Laundry Holdings LLC)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower, the Syndication Agent and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and, after giving effect to such assignment~~Agent. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(f) shall have occurred and be ~~continuing~~continuing with respect to the Borrower. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment by the parties to such assignment to the Administrative Agent of a registration and processing fee of $~~3,500~~ 3,000 (~~treating multiple~~or, ~~simultaneous~~ in the case of assignments by or to ~~two or more Related Funds as a single assignment) (except that no such registration~~ the Syndication Agent and ~~processing fee shall be payable in connection with an assignment by or to a Barclays Entity~~its affiliates, $500), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Inamed Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ Section and ~~provided, further,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate thereof or a Related Fund ~~thereof~~ of any Lender or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Doane Pet Care Co)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Rotech Healthcare Inc)

Successors and Assigns; Participations and Assignments. (a) This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and issuers of, and participants in, Letters of Credit and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent, the Syndication Agent and each Lender. (b) Any Lender may, without notice to or the consent of the ~~Borrower~~Borrower or the Agents, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") ----------- participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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~~ Loan, Commitment or other interest for all purposes under this Agreement and the other Loan Documents, and the ~~Borrower~~ Loan Parties, the Administrative Agent and the ~~Agents~~ Syndication Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to ~~Section 10.~~Section 110.1. 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, -------- such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, -------- such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater -------- ------- amount pursuant to any such Section than the ~~transferor~~ Lender that sold the participating interest to such Participant would have been entitled to receive in respect of the amount of the participation ~~transferred~~ sold by such ~~transferor~~ Lender to such Participant had no such ~~transfer~~ sale occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law -------- and upon written notice to the Administrative Agent and the Syndication Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund ~~thereof~~ or Control Investment Affiliate of any Lender or, with the consent of ~~(i)~~ the Borrower, the Administrative Agent and ~~so long as no Default or Event~~ the Syndication Agent and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that (x) no -------- such consent of any Agent need be obtained by any ▇▇▇▇▇▇ Entity or by any Paribas Entity and (y) no such consent need be obtained with respect to any assignment of Tranche B Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, or 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, substantially in the form of Exhibit E,~~ Acceptance executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent, the Syndication Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the -------- Borrower and the Administrative Agent, (A) no such assignment to an Assignee (other than any ~~Lender or~~ Lender, any affiliate thereof or Related Fund ~~thereof~~of any Lender) shall be in an aggregate principal amount of less than, and the aggregate principal amount retained by the assigning Lender shall not (unless such assigning Lender is thereby assigning all of its interest under this Agreement) be less than $~~5,000,000~~2,500,000 (or, in the case of ~~any assignment of Revolving Credit Commitments~~the Tranche B Term Loan Facility, ~~and~~ $1,000,000) unless otherwise agreed to by the Borrower, the Administrative Agent and the Syndication Agent, in ~~the~~ each case ~~of any assignment of Term Loans (~~other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 2.17~~Section 2.19, ~~2.18~~ 2.20 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the -------- recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Agent, or by any Lender (with respect to any entry relating to such Lender’s 's Loans) ), at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ~~connection~~ 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 ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 applicable 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, (x) 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 (i) nothing herein shall constitute a commitment by any SPC to make any Loan law and (iiy) ~~if an SPC elects not to exercise such option~~ any pledge or ~~otherwise fails to provide all or any part of such Loan, the Granting~~ assignment by a 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 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 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~~ a fund that invests in ~~full of all outstanding commercial paper or other indebtedness of~~ bank loans to 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 10.6(g), any SPC may (A) with notice to, but without the prior written consent holder of, ~~the Borrower and the Administrative Agent and without paying any processing fee therefor~~trustee for, 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.or

Appears in 1 contract

Sources: Credit Agreement (CSG Systems International Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more 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 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in -------- accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided -------- that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and, after giving effect to such assignment~~Agent. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(f) shall have occurred and be ~~continuing~~continuing with respect to the Borrower. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the ~~recordation~~ -------- recondition of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Intira Corp)

Successors and Assigns; Participations and Assignments. (a) ~~This~~ The provisions of this Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower, the Lenders, the Agents, all future holders of the Loans~~ parties hereto and their respective successors and ~~assigns~~assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of ~~its~~ their respective rights or obligations ~~under this Agreement~~ hereunder without the prior written consent of the ~~Agents~~ Lender (and ~~each Lender~~any attempted assignment or transfer by the Borrower without such consent shall be null and void). (bi) ~~Any~~ The Lender ~~may, without the consent of the Borrower, in accordance with applicable law, at any time sell~~ may assign to one or more ~~banks~~assignees (each, an “Assignee”) all or a portion of its rights and obligations under this Agreement (including Loans at the time owing to it); provided, however in the event the Assignee is not a financial ~~institutions~~ institution and no Event of Default then exists hereunder, the Lender shall obtain Borrower's consent to such Assignee (which consent shall not be unreasonably withheld or ~~other entities~~ delayed). (ii) The Lender may sell participations to one or more participants (each, a “Participant”~~) participating interests in any Loan owing to such Lender~~), ~~any Commitment~~ all or a portion of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s its rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1Agreement. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of ~~Sections 2.17, 2.18 and 2.19 with respect~~ this Agreement to ~~its participation in~~ the ~~Commitments and the Loans outstanding from time to time~~ same extent as if ~~such Participant were~~ it held its interest directly. (c) The Lender may at any time pledge or assign a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s security 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 ~~pursuant~~ to ~~an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent~~ secure obligations of the ~~Borrower~~Lender, ~~the Administrative Agent~~ including any pledge or ~~the Issuing Lenders is required pursuant~~ assignment to ~~the foregoing provisions~~secure obligations to a Federal Reserve Bank, ~~by the Borrower~~ and this Section shall not apply to any such ~~other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register~~pledge or assignment of a security interest; provided that no such ~~assignment to an Assignee (other than any Lender~~ pledge or ~~any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any~~ assignment of ~~Revolving Credit Commitments, and $1,000,000, in~~ a security interest shall release the ~~case~~ Lender from any of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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~~ hereunder or substitute any such pledgee or Assignee for 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~~ Lender as a party hereto. The Borrower, ~~except as~~ upon receipt of written notice from the Lender, agrees to ~~Sections 2.17, 2.18 and 10.5 in respect~~ issue Notes to the Lender to facilitate transactions of the ~~period prior to such effective date and Section 10.14). Notwithstanding any provision of~~ type described in this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (UFood Restaurant Group, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Parent REIT, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (ba) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities other than a natural Person or a Defaulting Lender (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10.of 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.17 and 2.18 (subject to the requirements and limitations therein, ~~2.18 and 2.19~~ including the requirements under 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 Commitments and the Loans outstanding from time to time as if such Participant were a ~~Lender~~Lender and had acquired its interest by assignment pursuant to paragraph (c) of this Section; provided ~~that~~that such participant agrees to be subject to the provisions of Section 2.22 as if it were an assignee under paragraph (c) of this Section, and, in the case of Section 2.18, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater ~~amount~~ payment results from ~~the adoption of, or~~ a ~~change~~ Change in ~~any Requirement of~~ Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (cb) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or ~~Related~~ Approved Fund ~~thereof~~ (other than a Defaulting Lender) or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of each Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to any assignment of Term Loans~~by the Arrangers or the Administrative Agent, ~~unless such assignment is to~~ each in its capacity as a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldLender), to an additional bank, financial institution or other entity (an “Eligible Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Eligible Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Eligible Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Eligible 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 the Revolving Credit 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 ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date~~ date); provided that, except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that ▇▇▇▇▇▇’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph 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 Section ~~10.14~~10.6(b). In the event that ▇▇▇▇▇▇▇▇ fails to object by written notice within five Business Days after the receipt of a request to approve an assignment pursuant to this Section 10.6(c), the Borrower shall be deemed to have consented to such assignment. Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default under Section 8.1(a) or 8.1(f) shall have occurred and be continuing, provided that parties hereby agree that ▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated may, without notice to the Loan Parties, assign its rights and obligations under this Agreement to any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related~~ Approved Funds shall be aggregated. (dc) The Administrative Agent shall, ~~on behalf~~ acting for this purpose as a nonfiduciary agent of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Eligible 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. Each Lender that sells a participation, acting for this purpose as a non-fiduciary agent of the Borrower (solely for tax purposes) 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 Revolving Credit Commitments, Loans and other Obligations held by it (the “Participant Register”); provided that, no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any 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) or proposed Section 1.163-5(b) of the United States Treasury Regulations (or, in each case, any amended or successor version). For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. 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 interest in the Revolving Credit Commitments, Loans and other Obligations as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary. (ed) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Eligible Assignee (and, in any case where the consent of any other Person 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 $~~3,500~~ 4,500 (treating multiple, simultaneous assignments by or to two or more ~~Related~~ Approved Funds as a single assignment) (except that no such registration and processing fee shall be payable (x) in connection with an assignment by or to the Arrangers, the Administrative Agent or their Control Investment Affiliates or (y) in the case of an Eligible Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 Eligible 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 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 ~~Restatement Closing~~ Fifth Amendment Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fe) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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. (gf) 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 (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 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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other ~~indebtedness~~ Indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment. (g) Notwithstanding anything to the contrary contained herein, no assignment under this Section 10.6 shall be made to (i) the Borrower or any of the Borrower’s Affiliates or Subsidiaries or (ii) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii). (h) Notwithstanding anything to the contrary contained herein, no such assignment under this Section 10.6 shall be made to a natural Person. (i) 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 fu

Appears in 1 contract

Sources: Credit Agreement (Essential Properties Realty Trust, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the 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 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. (b) Any Lender other than any Conduit Lender may, without the consent of the ~~Borrower~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”) "), including, without limitation, any Conduit Participant, participating interests in any Loan owing to such ~~Lender,~~ Lender or any Revolving Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ (i) reduce the ~~consent~~ amount or extend the scheduled date of ~~all Lenders pursuant~~ amortization or maturity of any Loan, (ii) reduce the rate of interest or any fee or extend any due date thereof or (iii) increase the amount or extend the expiry date of any Lender's commitment, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent 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 of less than $5,000,000~~that, ~~in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement, no such assignment to 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 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 and~~Agent; provided further that, ~~after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000,~~ except in the case of ~~Revolving Credit Commitments~~an assignment of all of a Lender's interests under this Agreement, ~~and~~ no such assignment to an Intracreditor Assignee shall (i) be in an aggregate principal amount of less than $~~1,000,000~~250,000 or (ii) cause the Assignor to have Aggregate Exposure of less than $250,000, in each case unless otherwise agreed by the ~~case~~ Borrower and the Administrative Agent. For purposes of clauses (i) and (ii) of the ~~Term Loans~~preceding sentence, the amounts described therein shall be aggregated in respect of each Lender and its related Approved Funds, if any. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. ~~For purposes~~ On the effective date of any Assignment and Acceptance, the Administrative Agent shall give notice of the ~~minimum assignment amounts~~ 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 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each ~~Agent~~ other Loan Party, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee~~, and the old Notes shall be returned by the~~ . The Administrative Agent will promptly send a copy of the Register 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 Loans) at any reasonable time and from time to time upon ~~reasonable prior notice~~request. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $3,500 (~~treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no~~ with only one such ~~registration and processing~~ fee ~~shall be~~ being payable in connection with ~~an assignment~~ simultaneous assignments to or by two or ~~to a Barclays Entity~~more related Approved Funds), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan ~~or Note~~ 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 no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (g) ~~Notwithstanding anything to~~ Each of Holdings, the ~~contrary contained herein~~Borrower, ~~any~~ each 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~~ and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Charter Communications Holdings LLC)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ no 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. (b) Any Lender may, without the consent of ~~the~~ any Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a ~~“Participant”~~"PARTICIPANT") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and ~~the Borrower~~ NSP and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The ~~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 Lender under this Agreement, ~~provided~~ PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The ~~Borrower and each Lender~~ Borrowers also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; ~~provided~~ PROVIDED that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section~~Section and PROVIDED, ~~and 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an ~~“Assignor”~~"ASSIGNOR") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ NSP and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an ~~“Assignee”~~"ASSIGNEE") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; ~~provided~~ PROVIDED that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) ~~shall~~ shall, unless otherwise agreed by NSP and the Administrative Agent, be in an aggregate principal amount (treating multiple, simultaneous assignments to two or more Approved Funds managed by the same investment advisor as a single assignment) of less than ~~$5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loansi) ~~shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and~~ $1,000,000, in the case of the Term Loans, (ii) $2,500,000, in the case of the U.S. Revolving Loans, or (iii) C$2,500,000, in the case of the Canadian Loans, unless the entire Commitments and Loans and other interests of the assigning Lender (and of all Lenders which are Approved Funds managed by the same investment advisor as the assigning Lender) are so assigned; and PROVIDED FURTHER that no such assignment of all or any part of the Canadian Commitment or the Canadian Extensions of Credit shall be made in favor of any Person which is a non-resident of Canada for the purpose of Section 212 of the Income Tax Act (Canada). Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of ~~the Borrower~~ NSP shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of ~~the Borrower~~NSP, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the ~~“Register”~~"REGISTER") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrowers, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes 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 (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 facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper 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 10.6(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. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 1 contract

Sources: Credit Agreement (Norcross Capital Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by Borrower or any ~~Loan Party~~ of its Subsidiaries therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such Assignee and such ~~Assignor (and~~Assignor, ~~where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ (i) that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~3,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement or if a Default has occurred and is continuing and (ii) such Assignee shall have complied with the requirements of Section 2.14 of this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it any. No Assignee shall ~~retain any Revolving Credit Commitment or Loans) shall~~ be entitled to receive a greater amount pursuant to Section 2.14 of this Agreement than the Assignor would have ~~Commitments and Loans aggregating at least $5,000,000,~~ been entitled to receive in ~~the case of Revolving Credit Commitments, and $1,000,000, in the case~~ respect of the ~~Term Loans~~assigned rights and obligations had no such assignment occurred. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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, ~~except as~~ any Conduit Lender may assign at any time to ~~Sections 2.17~~its designating Lender hereunder without the consent of 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). Notwithstanding anything in this Section 10.6(c) or elsewhere in this Agreement to the contrary, ~~2.18 and 10.5~~ in the case of any assignments contemplated by this Section 10.6(c) occurring after CALYON New York Branch’s primary syndication of the Loans, no Assignee shall be entitled to receive any greater amount pursuant to any such Section hereof than the Assignor would have been entitled to receive in respect of the ~~period prior~~ amount of the Loans transferred by such Assignor to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedAssignee had no such transfer occurred. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans ~~and any Notes evidencing such Loans~~ recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan, whether or not evidenced by a Note,~~ Loan shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ Each of the ~~contrary contained herein~~Borrower, ~~any~~ each 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~~ and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Senior Credit Agreement (AerCap Holdings N.V.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States 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”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent 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~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a Loan, unless each of the Administrative Agent and ~~$1,000,000~~the Borrower otherwise consents to such lesser amount, ~~in the case of any~~ (ii) each partial assignment ~~of Term Loans (other than in the case of~~ shall be made as an assignment of a proportionate part of all ~~of a~~ the assigning Lender’s ~~interests~~ rights and obligations under this ~~Agreement), unless otherwise agreed by~~ Agreement with respect to the ~~Borrower~~ Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent ~~and~~an Assignment and Acceptance, ~~after giving effect~~ together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to ~~such assignment,~~ the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender and assignee Lender, (~~if it shall retain any Revolving Credit Commitment or Loans~~ii) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by 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~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 10.5. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as ~~to Sections 2.17, 2.18~~ a sale by such Lender of a participation in such rights and ~~10.5~~ obligations in ~~respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision~~ accordance with paragraph (c) of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have 65 60 complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice.. 66 61 (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) The Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Church & Dwight Co Inc /De/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~REIT, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 1011. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 11.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower, the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the ~~Borrower~~ Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldL▇▇▇▇▇ Entity), 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, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or and the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement)) and, the applicable Assignor (if it shall retain any Commitment or Loans) shall have a Commitment (or in the case the Commitments have been terminated, Loans) of at least $1,000,000, unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.14, ~~2.18~~ 2.15 and ~~10.5~~ 11.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $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 Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.L▇▇▇▇▇ Entity or

Appears in 1 contract

Sources: Credit Agreement (U-Store-It Trust)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ 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 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable -------- law, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or ~~Related~~ Approved Fund thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 --------- pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an affiliate or Approved Fund thereof, by the Borrower and ~~such other Persons~~the Administrative Agent) and delivered to the Administrative Agent 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~~ Approved Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the 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 assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 8 shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ 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 (the “"Register”") for the recordation of the names and addresses of -------- the Lenders and the ~~Commitment~~ Commitments of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such Loans~~ Loan recorded therein for all purposes of this Agreement~~. Any~~ . (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 or Approved Fund thereof, by the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500, 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; provided however, that no such fee shall be payable in the case of an -------- ------- assignment to another Lender or an Affiliate or Approved Fund of a 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 $3,500 such fee shall be payable for all such contemporaneous assignments. (i) To the extent requested by any ~~Loan~~Lender, ~~whether or not~~ the Loans made by such Lender shall be evidenced by a Note issued by the Borrower, substantially in the form of Exhibit F-1, F-2, F-3, or F-4, as the case may be, payable to the order of such Lender (or, in the case of any Alternative Note, payable to such Lender or its registered assigns). 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, to the extent requested by the Assignee, 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 ~~effective only upon appropriate entries with~~ dated the Closing Date. (ii) 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 ~~thereto being made~~ 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) substantially in the ~~Register~~form of Exhibit F-3 or F-4, as the case may be (each, 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 2.19(b). 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 ~~a Loan evidenced by a Note~~ 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 ~~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~~ by) the Alternative Noteholder thereof, and ~~Assumption;~~ thereupon one or more new ~~Notes~~ Alternative Note(s) in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee(s). No assignment of an Alternative Note and the ~~old Notes~~ Obligations evidenced thereby shall be ~~returned by~~ effective unless it has been recorded in 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 Loans) at any reasonable time and from time to time upon reasonable prior noticeRegister. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fg) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Details Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18 (and subject to the obligations of Sections 2.17, ~~2.18~~ 2.19 and ~~2.19~~ 2.20) with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided ~~that~~that a Participant shall not be entitled to the benefits of any such Section unless the Borrower is notified of the participation sold to such Participant and, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ 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, except~~ occurred and the aggregate amount of any payments payable under any such Section to the ~~extent~~ transferor Lender and its Participant shall not exceed the amount of such ~~entitlement~~ payments to ~~receive a greater amount results from~~ which the ~~adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable~~ transferor Lender would have been entitled had it not sold such participation. ~~Each Lender that sells a participation shall~~Except as set forth in this Section 10.6(b), ~~acting solely for this purpose as a non-fiduciary agent of~~ the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 not have any obligation ~~to disclose all~~ or ~~any portion of the Participant Register~~ duty to any ~~Person (including the identity of any Participant or any information relating to a~~ Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~1,000,000), in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be ~~continuing~~continuing and for which notice (other than in the case of an Event of Default under Section 8(f)) shall have been given to the Borrower. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement, and the recordation in the Register shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~2,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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 may request that Loans made by it be evidenced by a promissory note, ~~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, upon receipt of written notice from the ~~option~~ relevant Lender, agrees to ~~provide~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in this Agreement. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the ~~Borrower~~ order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.6) be represented by one or ~~any part of any Loan that~~ more promissory notes in such ~~Granting Lender would otherwise be obligated to make~~ form payable to the Borrower 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 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 order of the ~~Granting~~ payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns). (h) Each of the Borrower, each Lender to and the ~~same extent~~Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~and as if~~reorganization, ~~such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for~~ arrangement, insolvency or liquidation proceeding under any ~~indemnity~~ state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (National Financial Partners Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7 (a) as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, ~~in which case~~ then such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing ~~Lenders~~ Lender (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent~~ Borrower or the ~~Issuing Lenders~~ Agents is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Cinemark Usa Inc /Tx)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more 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 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.maximum

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 Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that Holdings and 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10.this 110.1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the ~~Administrative Agent and so long as no Default or Event of Default has occurred and is continuing~~Borrower, the ~~Borrower~~ Agents and each Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldLehman Entity), 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, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower,~~ Borrower the ~~Administrative Agent~~ Agents or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 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 2.17~~Section 2.14, ~~2.18~~ 2.15 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ~~Barclays Entity~~Lehman Entity or (z) in the case of an Assignee which is already a Len▇▇▇ ▇▇ is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Villa Pines Care LLC)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one (1) or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.07(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.12, ~~2.18~~ 2.13 and ~~2.19~~ 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of ~~Section 2.18~~Sections 2.13 and 2.14, such Participant shall have complied with the requirements of said ~~Section,~~ Sections 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as ~~a non-fiduciary~~ an agent of the Borrower (~~and such agency being solely for tax purposes~~but without giving rise to any fiduciary obligation of any kind to the Borrower), maintain a register ~~in the United States~~ 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~~ provided, however, 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 or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ Commitment, Loan, letter of credit or other obligation is in registered form under Section 5f.103-~~1(c~~1(c ) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for ~~all~~ purposes of this Agreement notwithstanding any notice to the contrary~~. For the avoidance of doubt, the 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”) may, in accordance with applicable law, at any time and from time to time assign to any Lender (other than any Defaulting Lender) or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register~~Register (as defined below); provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, and after giving effect to such assignment, such assigning Lender shall have Commitments and Loans in ~~the~~ an aggregate amount of at least $5,000,000 in each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000,~~ described in ~~the case of any assignment of Term Loans (other than~~ this sentence except in the case of an assignment of all of a Lender’s interests under this Agreement). For purposes of the proviso contained in the preceding sentence, ~~unless otherwise agreed by~~ the ~~Borrower~~ amount described therein shall be aggregated in respect of each Lender and ~~the Administrative Agent and~~its Lender Affiliates, ~~after giving effect~~ if any. The Assignee shall purchase, at par, all Loans and pay all accrued interest and other amounts owing to such ~~assignment,~~ Assignor under this Agreement on or prior to the ~~assigning Lender (if it shall retain~~ date of assignment for any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment ~~need not be ratable as among the Facilities~~pursuant to Section 2.17. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, relinquish its rights (other than its rights under Sections 2.13, 2.14, and 9.05 to the extent any claim thereunder relates to an event arising prior to the effective date of such assignment) and be released from its obligations (other than its obligations under Section 8.07 with respect to matters arising prior to the effective date of such assignment) 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 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 9.06, (i) the consent of the Borrower shall not be required for any assignment that occurs after the occurrence and during the continuance of an Event of Default, and (ii) no assignment shall be made to the Borrower or any Affiliate of the Borrower. Notwithstanding the foregoing, any Conduit Lender may assign at any time ~~when any Event of Default shall have occurred and be continuing. For purposes~~ to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 9.06(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.02 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~9.06(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption and~~ Acceptance, (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register on the effective date determined pursuant thereto, and ~~give notice~~ (iii) promptly notify Borrower of ~~such acceptance and recordation to the Borrower. On or prior to such effective 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,~~ receipt 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationAcceptance. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.06 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency, or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement~~ law, for one (~~all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement~~1) ~~that, prior to the date that is one~~ year and one (1) day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper or 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 ~~indebtedness of~~ party to this Agreement for any ~~SPC~~loss, ~~it will not institute against~~cost, damage, 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Fedex Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ 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 the ~~Agents~~ Subsidiary Borrower or the Canadian Borrower as permitted by Section 7.3) and ~~each Lender~~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 the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions or other entities~~ 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 and under the other Loan Documents~~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 other Loan Documents~~Agreement, and the ~~Borrower~~ Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and the other Loan Documents~~Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~any Loan Document~~this Agreement, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ 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~~ 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 ~~deemed~~ required to ~~have agreed to share~~ deal directly with one another in respect of, the ~~Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if~~ participation of such ~~Participant were a Lender hereunder~~Participant. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ 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 ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ 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, ~~except~~ no Loan Party shall be required to ~~the extent such entitlement to receive a~~ pay any greater amount ~~results from~~ pursuant to Section 2.18 as a result of the ~~adoption of, or~~ transfer of a ~~change in any Requirement of Law that occurs after the~~ participation to a Participant ~~acquired the applicable participation~~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 (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ 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, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury ~~Regulations~~Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with the Canadian Borrower for purposes of the Income Tax Act (Canada). 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”) ~~may~~shall be permitted to assign, in accordance with applicable law, ~~at any time~~ all or a portion of its Loans and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving ~~Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld),~~ Commitments hereunder to an ~~additional bank, financial institution or other entity~~ Eligible Assignee (an “Assignee”) ~~all~~ with the consent, not to be unreasonably withheld, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or ~~any part~~ a Lender Affiliate or (ii) an Event of ~~its rights~~ Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and ~~obligations under this Agreement~~ 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, ~~substantially in the form of Exhibit E,~~ executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register; provided~~ relevant Register (it being understood and agreed that no such ~~assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof)~~ Assignee, if it shall not be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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~~ shall deliver to the Administrative Agent ~~and~~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, ~~after giving effect~~ 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 ~~assigning Lender (if it shall retain~~ cost under this Agreement to any ~~Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000,~~ Borrower in the ~~case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities~~foreseeable future. Upon such execution, delivery, acceptance and ~~recording~~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 ~~Commitments~~ 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the ~~Borrower shall not be required for~~ Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (~~the~~ 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 ~~the~~ each Register shall ~~be conclusive~~constitute prima facie evidence of the same, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~the~~ each Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 ~~in the same aggregate principal amount shall~~ may be issued to the designated Assignee, ~~and the old Notes shall be returned~~ if requested 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 Loans) at any reasonable time and from time to time upon reasonable prior notice~~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 and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 ~~$3,500 (treating multiple~~US$3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fg) 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 ~~assignments creating security interests in Loans and Notes~~the granting of security, ~~including, without limitation,~~ 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) ~~Notwithstanding anything to the contrary contained herein~~above. (i) Each Borrower, ~~any~~ each 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~~ and the Administrative Agent ~~and the Borrower~~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, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Domtar CORP)

Successors and Assigns; Participations and Assignments. (a) ~~This~~ The provisions of this Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower, the Lenders, the Agents, all future holders of the Loans~~ parties hereto and their respective successors and ~~assigns~~assigns permitted hereby (including any affiliate of the Tranche A Issuing Lender that issues any Tranche A Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations ~~under this Agreement~~ hereunder without the prior written consent of each Funding Party (and any attempted assignment or transfer by the ~~Agents~~ Borrower without such consent shall be null and ~~each Lender~~void) and (ii) no Funding Party may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 10.6. (bi) ~~Any Lender may~~Subject to the conditions set forth in paragraph (b)(ii) below, ~~without the consent of the Borrower, in accordance with applicable law, at~~ any ~~time sell~~ Funding Party may assign to one or more ~~banks, financial institutions or other entities~~ assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitments and the Loans at the time owing to ~~an Assignment and Assumption~~it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of: (A) the Borrower, ~~substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the~~ provided that no consent of the ~~Borrower~~Borrower shall be required for an assignment to a Funding Party, an affiliate of a Funding Party, an Approved Fund or, if an Event of Default under Section 8(a) or (f) has occurred and is continuing, any other Person; (B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of a Term Loan or any Incremental Facility Term Loan to a Funding Party, an Affiliate of a Funding Party or an Approved Fund; (C) the Tranche A Issuing ~~Lenders is required pursuant~~ Lender and the Swingline Lender with respect to ~~the foregoing provisions~~an assignment of all or any portion of a Revolving Loan, ~~by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register;~~ provided that no consent of the Tranche A Issuing Lender and the Swingline Lender shall be required for an assignment to a Funding Party or an affiliate of a Funding Party; and (D) the Tranche B Issuing Lender with respect to an assignment of all or any portion of a Tranche B ▇/C Commitment, provided that no consent of the Tranche B Issuing Lender shall be required for an assignment to a Funding Party or an affiliate of a Funding Party and provided further that any such assignment ~~to an Assignee (other than any Lender or any affiliate or Related Fund thereof)~~ shall be in accompanied by an ~~aggregate principal amount of less than $5,000,000, in the case of any~~ assignment of ~~Revolving Credit Commitments, and $1,000,000, in~~ a corresponding portion of such Term B Issuing Lender’s Tranche B ▇/C Deposit. (ii) Assignments shall be subject to the ~~case of any assignment of Term Loans~~ following additional conditions: (~~other than~~ A) except in the case of an assignment ~~of all~~ to a Funding Party, an affiliate of a ~~Lender~~Funding Party or an Approved Fund or an assignment of the entire remaining amount of the assigning Funding Party’s ~~interests~~ Commitments or Loans under ~~this Agreement)~~any Facility, ~~unless otherwise agreed by~~ the ~~Borrower~~ amount of the Commitments or Loans of the assigning Funding Party 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 and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans~~Agent) shall ~~have Commitments and Loans aggregating at least~~ not be less than $~~5,000,000, in the case of Revolving Credit Commitments, and $1,000,000~~5,000,000 (or, in the case of the Term ~~Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution~~Facility or any Incremental Facility, ~~delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x~~$1,000,000) 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 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 Sections 2.17, 2.18 and 10.5 in respect unless each of the ~~period prior to~~ Borrower and the Administrative Agent otherwise consent, provided that (1) no such ~~effective date and Section 10.14). Notwithstanding any provision of this Section, the~~ consent of the Borrower shall ~~not~~ be required ~~for any assignment that occurs at any time when any~~ if an Event of Default ~~shall have~~ under Section 8(a) or (f) has occurred and ~~be continuing. For purposes of the minimum assignment~~ is continuing and (2) such amounts ~~set forth in this paragraph, multiple assignments to or by two or more Related Funds~~ shall be aggregated in respect of each Funding Party and ~~for purposes of the minimum hold amounts~~its affiliates or Approved Funds, ~~the Commitments and Loans of Related Funds shall be aggregated.~~if any; (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunderB) 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 parties to ~~the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request,~~ each assignment shall execute and deliver to the Administrative Agent (an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided that only one such fee shall be payable in ~~exchange for the Revolving Credit Note and/or applicable Term Notes, as~~ the case ~~may be,~~ of contemporaneous assignments to or by two or more Approved Funds; (C) 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 to such Assignment and Assumption andAssignee, if ~~the Assignor has retained~~ it shall not be a ~~Revolving Credit Commitment and/or Term Loans~~Funding Party, 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 deliver to the Administrative Agent ~~and the Borrower~~an administrative questionnaire; and (D) except as permitted pursuant to paragraph (b)(iii) below, ~~the option to provide~~ no assignment shall be 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentSubsidiaries.

Appears in 1 contract

Sources: Credit Agreement (Vought Aircraft Industries Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents, all future holders of the Loans~~ Agent and their respective successors and assigns, except that 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. (b) Any Lender may, ~~without~~ in the ~~consent~~ ordinary course of ~~the Borrower,~~ its business and in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions~~ banks or other entities (~~each, a “Participant”~~"Participants") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other ~~Loan Documents~~Credit Documents (including to loan derivative counterparties in respect of swaps or similar arrangements having the practical or economic effect thereof). 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 other ~~Loan~~ Credit Documents, and the Borrower and the ~~Agents~~ Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other ~~Loan~~ 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 any ~~Loan~~ Credit Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ directly forgive any principal of any Loan or reduce the ~~consent~~ stated rate, or forgive any portion, or postpone the date for the payment, of ~~all Lenders pursuant~~ any interest or fee payable hereunder (other than as a result of waiving the applicability of any post-default increase in interest rates), or increase the aggregate amount of the Commitments of any Lender or postpone the date of the final scheduled maturity of any Loan, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 13.7 as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") 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 ~~Related Fund thereof or,~~ to any other banks or other entities (an "Assignee") (A) without consulting with the ~~consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing~~Borrower, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 with respect to its Commitments and (B) without consulting with the Borrower, Loans made pursuant to this Agreement and the other Credit Documents and all rights related thereto, in each case pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EB (an "Assignment and Acceptance"), executed by such Assignee and such Assignor ~~(and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons)~~ and delivered to the ~~Administrative~~ Agent for its acceptance and recording in the Register; provided ~~that~~ that, except in the case of an assignment of all of a Lender's interests under this Agreement, unless otherwise agreed to by the Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund~~ Affiliate thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments and/or Loans~~ a Commitment as set forth ~~therein,~~ 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 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Agreement to the contrary, ~~the consent of~~ consultation with the Borrower shall not be required for any assignment that occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 11(e) or (f) shall have occurred and be ~~continuing. For purposes of~~ continuing with respect to the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedBorrower. (d) Nothing herein shall prohibit any Lender from pledging or assigning all or any portion of its Loans to any Federal Reserve Bank in accordance with applicable law. To the extent requested by any Lender, the Borrower shall execute and deliver to such Lender a note dated the Closing Date substantially in the form Exhibit A-1 hereto to evidence the portion of the Loan made by such Lender and with appropriate insertions ("Bridge Notes"). On each Interest Payment Date prior to the Maturity Date, to the extent requested by any Lender, the Borrower shall execute and deliver to such Lender on such Interest Payment Date a note dated such Interest Payment Date substantially in the form of Exhibit A-2 hereto in a principal amount equal to such Lender's pro rata portion of any PIK Interest Amount and with other appropriate insertions (each a "Bridge PIK Note" and, together with the Bridge Notes, the "Notes"). A Bridge PIK Note shall bear interest from the date of its issuance at the same rate borne by all Notes at the date of issuance and from time to time thereafter. (e) The ~~Administrative Agent shall~~Agent, on behalf of the Borrower, shall maintain at ~~its~~ the address of the Agent referred to in Section ~~10.2~~ 13.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the ~~Lenders and~~ Lenders, the Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and the other information required by Section 2.5(e). The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of a Loan or other obligation hereunder as the ~~Loans and any Notes evidencing such Loans recorded therein~~ owner thereof for all purposes of this ~~Agreement~~Agreement and the other Credit 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (ef) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an Affiliate thereof, by ~~each such other Person~~the Borrower and the Agent) together with payment to the ~~Administrative~~ Agent of a registration and processing fee of $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 connection with an assignment by or to a Barclays Entity), and 3500 the ~~acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 ~~Borrower. On or prior to such effective date,~~ Lenders and 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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~~ Subject to Section 13.16, 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~~ Borrower authorizes each Lender to ~~the Administrative Agent~~ disclose to any Participant or Assignee (each, a "Transferee") and ~~the Borrower, the option to provide to~~ any prospective Transferee any and all financial information in such Lender's possession concerning the Borrower ~~all~~ and its Affiliates that has been delivered to such Lender by or ~~any part~~ on behalf of ~~any Loan that such Granting Lender would otherwise be obligated to make to~~ 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; provided that ~~(i) nothing herein shall constitute a commitment by~~ neither the Agent nor 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~~ provide to ~~make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment~~ any Transferee or prospective Transferee any of the ~~Granting Lender to~~ Confidential Information unless such person shall have previously executed a Confidentiality Agreement in the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance form of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.Exhibit D.

Appears in 1 contract

Sources: Pik Bridge Loan Agreement (Rockwood Holdings, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.17,2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof ~~or,~~ or with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained ~~with respect to~~ by any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require Agent and (y) the consent of the ~~Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall~~ Borrower need not be ~~unreasonably withheld~~obtained upon the occurrence and during the continuation of a Default or an Event of Default), 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, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any ~~affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 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 2.17, 2.18~~ Section 2.17,2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any ~~assignment~~ assigmnent that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 any Agent or (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Related Fund or Control Investment Affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 Borrower may replace any assignee or pledgee that becomes a Lender pursuant to an assignment or pledge permitted by this Section 10.6(f) in accordance with clause (x) or (y) of Section 10.1(b). (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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Rotech Healthcare 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 Parent~~Holdco, any Intermediate Holdco, the ~~Borrower,~~ Borrower and the ~~Lenders, the Agents, all future holders of the Loans~~ Credit Parties and their respective successors and assigns, except that neither the Borrower nor Holdco nor any Intermediate Holdco may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (and any attempted assignment or transfer by Holdco, any Intermediate Holdco or the ~~Agents~~ Borrower without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns and, to the extent expressly contemplated hereby, the Affiliates of each ~~Lender~~of the Credit Parties) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) Any Lender may, without the consent of the ~~Borrower, in accordance with applicable law~~Borrower or the Administrative Agent, at any time ~~sell~~ sell, to one or more ~~banks, financial institutions~~ banks or other entities (~~each, a “Participant”~~"PARTICIPANTS") participating interests in ~~any Loan owing to such Lender, any Commitment~~ all or a portion of the rights and obligations of such Lender under this Agreement (including, without limitation, all or ~~any other interest~~ a portion of such ~~Lender hereunder~~ Lender's Loans, L/C Obligations and ~~under the other Loan Documents~~Commitments outstanding hereunder). In the event of any such sale by a Lender of a participating interest to a Participant, (i) such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible for the performance thereof, (iii) such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and (iv) the Borrower and the ~~Agents~~ other Credit Parties shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document,~~ matter relating to this Agreement or any ~~consent to any departure by any~~ other Loan ~~Party therefrom,~~ Document except ~~to the extent that such amendment, waiver or consent would require~~ for those matters specified as requiring the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.SECTION

Appears in 1 contract

Sources: Credit Agreement (Spectrasite Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or any Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~would require~~ requires the consent of ~~all Lenders~~ each Lender directly affected thereby pursuant to ~~Section 10.~~the proviso to the second sentence of Section 110.1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the written consent of ~~(i)~~ the Borrower, the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E,~~ Acceptance executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative ~~Agent~~ Agent, the Issuing Lender or the ~~Issuing Lenders~~ Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ 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 of less than $5,000,000, ~~in the case of any~~ with respect to an assignment of Revolving Credit ~~Commitments~~Loans, and $1,000,000, in with respect to an assignment of Term Loans and, after giving effect thereto, the ~~case~~ Assignor shall have Commitments and Loans aggregating at least $5,000,000, with respect to an assignment of ~~any~~ Revolving Credit Loans, and $1,000,000, with respect to an assignment of Term Loans (in each case, other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 2.17~~Section 2.19, ~~2.18~~ 2.20 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing, provided that, after the occurrence and during the continuation of an Event of Default, the Borrower may identify, by written notice to the Administrative Agent (and the Administrative Agent shall promptly notify the Lenders), up to two banks, financial institutions or other entities who shall not be permitted to be an Assignee hereunder during the continuation of such Event of Default. For purposes of the minimum assignment or hold amounts set forth in this paragraph, multiple assignments to or by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ~~Barclays Entity~~▇▇▇▇▇▇ 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), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (K&f Industries Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States 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”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent 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~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a Loan, unless each of the Administrative Agent and ~~$1,000,000~~the Borrower otherwise consents to such lesser amount, ~~in the case of any~~ (ii) each partial assignment ~~of Term Loans (other than in the case of~~ shall be made as an assignment of a proportionate part of all ~~of a~~ the assigning Lender’s ~~interests~~ rights and obligations under this ~~Agreement), unless otherwise agreed by~~ Agreement with respect to the ~~Borrower~~ Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent ~~and~~an Assignment and Acceptance, ~~after giving effect~~ together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to ~~such assignment,~~ the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender and assignee Lender, (~~if it shall retain any Revolving Credit Commitment or Loans~~ii) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.13(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by 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~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 10.5. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as ~~to Sections 2.17, 2.18~~ a sale by such Lender of a participation in such rights and ~~10.5~~ obligations in ~~respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision~~ accordance with paragraph (c) of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the~~ The Parent, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to ~~Section 10.~~Section 111.1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 11.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, in the case of an assignment to any other Person with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by any ▇▇▇▇▇▇ Entity or any Agent for a period of 180 days following the Closing Date and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrower or, the Administrative Agent or the Issuing ~~Lenders~~ Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any ~~affiliate~~ Affiliate or Related Fund thereof) shall be in an aggregate principal amount of of, and no Assignor shall hold following such assignment, less than $~~5,000,000, in~~ 1,000,000 with respect to the ~~case of any assignment of~~ Term Loans and $1,000,000 with respect to the Revolving Credit ~~Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ Facility (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 2.17~~Section 2.19, ~~2.18~~ 2.20 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $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 ~~Barclays Entity~~▇▇▇▇▇▇ 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), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, ~~including, without limitation,~~ 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 “"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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~11.6(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 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Dobson Communications Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that (i) the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each ~~Lender~~Lender and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Agreement. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other ~~entities~~ entities, in each case other than any Disqualified Institution (but only if the DQ List has been posted pursuant to Section 10.6(i)(iv)(A) hereof or otherwise provided to such Lender), a Defaulting Lender, a natural person or to any entity that such Lender has knowledge is a competitor (or an affiliate of a known competitor) of the Borrower or any Founding Member (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except that a Lender may agree with a Participant that it will not consent to ~~the extent that such~~ any amendment, waiver or consent that would require the consent of all Lenders pursuant to Section ~~10. 1~~10.1 without the consent of such Participant. 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 provided under Section 10.7(b) 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of of, and subject to the requirements of, Sections ~~2.17~~2.19, ~~2.18~~ 2.20, 2.21 and ~~2.19~~ 2.23 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater ~~amount~~ payment results from ~~the adoption of, or~~ a ~~change~~ Change in ~~any Requirement of~~ Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ on which it enters the name and address of each Participant and the principal amounts of (and stated ~~interest~~interest on) 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 's interest in any ~~Commitments~~ 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 ~~any~~ such ~~Commitment~~ commitment, loan, letter of 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. 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 (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund ~~thereof~~ or Control Investment Affiliate thereof, in each case other than to any Disqualified Institution, a Defaulting Lender, a natural person or an entity that such Lender has knowledge is a is a competitor (or an affiliate of a known competitor) of the Borrower or any Founding Member or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments only, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or ~~delayed)~~ delayed (~~provided~~ it being understood that ~~no such~~ the Borrower shall have the right to waive its consent ~~need be obtained with respect~~ rights hereunder by notice to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the ~~consent of the Borrower~~Administrative Agent)~~, and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EF or any other form (including electronic records generated by the use of an electronic Platform) approved by the Administrative Agent (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any ~~affiliate~~ Affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000,~~ 500,000 in the case of ~~any~~ the assignment of ~~Revolving Credit Commitments, and~~ any Term Loans or $~~1,000,000,~~ 5,000,000 in the case of ~~any~~ the assignment of ~~Term Loans~~ any Revolving Credit Commitments (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.19, ~~2.18~~ 2.20, 2.23 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, (i) the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing, and (ii) the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within 10 Business Days after having received notice thereof. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be ~~aggregated and~~ aggregated. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.6 (other than with respect to Disqualified Lenders), whether or not such assignment or transfer is reflected in the Register, shall be treated for purposes of ~~the minimum hold amounts, the Commitments~~ this Agreement as a sale by such Lender of a participation in such rights and ~~Loans~~ obligations in accordance with paragraph (b) of ~~Related Funds shall be aggregated~~this Section 10.6. (d) The Administrative Agent shall, acting solely for this purpose as an agent on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the (and stated interest on) Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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~~ thereupon, if requested by the designated Assignee, one or more new Notes in the same aggregate principal amount shall be issued to ~~the~~ 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~10.6(b), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (~~treating multiple, simultaneous assignments by~~ which registration and processing fee may only be waived or ~~to two or more Related Funds as a single assignment~~reduced in the sole discretion of the Administrative Agent) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to the Administrative Agent or (z) in the case of an Assignee which is an affiliate or Related Fund of a ~~Barclays Entity~~Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective date, the Borrower, at its own expense, upon ~~request~~request and upon receipt by the Borrower of the old Notes (if any) for cancellation, 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 to such Assignment and ~~Assumption~~ 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or Assignee for such Lender as a party hereto. (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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~10.6(f), 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. ~~This~~ In addition to the consent requirements set forth in Section 10.1, this paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment. (h) Notwithstanding the foregoing or anything to

Appears in 1 contract

Sources: Credit Agreement (National CineMedia, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~REIT, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more 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 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 or 2.18 ~~and 2.19~~ with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the ~~Administrative Agent~~ Borrower and ~~so long as no Default or Event~~ the Agents and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the ~~Administrative Agent~~ Agents or the Issuing ~~Lenders~~ Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 the Revolving Credit 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 ~~Sections 2.17~~Section 2.16, ~~2.18~~ 2.17 and 10.5 in respect of the period prior to such effective ~~date and~~ date). In the event that Borrower fails to respond within five Business Days after the receipt of a request to approve an assignment pursuant to this Section ~~10.14~~10.6(c), the Borrower shall be deemed to have consented to such assignment. Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. Each Lender that sells a participation, acting for this purpose as a non-fiduciary agent (solely for tax purposes) shall maintain a register on which it enters the name and address of each participant and the principal amounts of each participant’s interest in the Revolving Credit Commitments, Loans and other Obligations held by it (the “Participant Register”). 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 interest in the Revolving Credit Commitments, Loans and other Obligations as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity~~), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Hudson Pacific Properties, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, the ~~Borrower~~Subsidiary Borrowers, the ~~Lenders~~Banks, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ no Specified 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.~~Bank. Arrow Electronics Credit Agreement (b) Any ~~Lender~~ Bank may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such ~~Lender~~Bank, any Commitment of such ~~Lender~~ Bank or any other interest of such ~~Lender~~ Bank hereunder and under the other ~~Loan~~ Credit Documents. In the event of any such sale by a ~~Lender~~ Bank of a participating interest to a Participant, such ~~Lender’s~~ Bank's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such ~~Lender~~ Bank shall remain solely responsible for the performance thereof, such ~~Lender~~ Bank shall remain the holder of any such Loan for all purposes under this Agreement and the other ~~Loan~~ Credit Documents, and the ~~Borrower~~ Company, the Subsidiary Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such ~~Lender~~ Bank in connection with such ~~Lender’s~~ Bank's rights and obligations under this Agreement and the other ~~Loan~~ 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 any ~~Loan~~ Credit Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The Borrower~~ Each of the Company and the Subsidiary Borrowers 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~~ Bank under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the ~~Lenders~~ Banks the proceeds thereof as provided in ~~Section 10.7(a)as~~ subsection 14.7(a) as fully as if ~~such Participant~~ it were a ~~Lender~~ Bank hereunder. ~~The Borrower~~ Each of the Company and ~~each Lender~~ the Subsidiary Borrowers also ~~agree~~ agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 7.5, ~~2.18 and 2.19~~ 7.6 or 7.8 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a ~~Lender~~Bank; provided that, in the case of ~~Section 2.18~~subsection 7.6, such Participant shall have complied with the requirements of said ~~Section,~~ 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~~ Bank would have been entitled to receive in respect of the amount of the participation transferred by such transferor ~~Lender~~ Bank to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any ~~Lender~~ Bank may, with the consent of the Issuing Banks, if applicable (~~an “Assignor”) may~~which shall not be unreasonably withheld or delayed), in accordance with applicable law, at any time and from time to time assign to any ~~Lender~~ Bank or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the ~~Borrower~~ Company (~~which, in each case,~~ which shall not be unreasonably withheld or ~~delayed) (~~delayed and provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the ~~Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent~~ Company shall not be ~~unreasonably withheld~~required for such assignment if a Default or Event of Default pursuant to subsection 12(a), 12(c) or 12(g) has occurred and is continuing at the time of such assignment), 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 Loans pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee~~ Assignee, such assigning Bank and ~~such Assignor (and, where the~~ any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that after giving effect to any such assignment, the transferor Bank's aggregate Dollar Equivalent Amount of its Local Currency Bank Maximum Borrowing Amount under all Local Currency Facilities may not exceed its Commitment hereunder; provided further that, unless otherwise agreed by the Arrow Electronics Credit Agreement Company and the Administrative Agent, no such assignment to an Assignee (other than any ~~Lender~~ Bank or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $5,000,000, ~~in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a ~~Lender’s~~ Bank's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning Lender (~~amount described therein shall be aggregated in respect of each Bank and its affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and 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~~ Bank hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the ~~Assignor~~ assigning Bank 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 Bank's rights and obligations under this Agreement, such ~~Assignor~~ assigning Bank shall cease to be a party ~~hereto, except as~~ hereto but shall continue to ~~Sections 2.17, 2.18 and 10.5 in respect of~~ be entitled to the ~~period prior to such effective date and Section 10.14~~provisions hereunder which survive termination). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall~~shall maintain, on behalf of the ~~Borrower~~Borrowers, ~~maintain~~ at its address referred to in ~~Section 10.2~~ subsection 14.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the ~~Lenders~~ Banks and the Commitment of, and principal amount of the Loans owing hereunder to, each ~~Lender~~ Bank from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Company, ~~each~~ the Administrative Agent and the ~~Lenders shall~~ Banks may treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan, whether or not evidenced by a Note,~~ Loan shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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~~ Company or any ~~Lender (with respect to any entry relating to such Lender’s Loans)~~ Bank at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ assigning Bank, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~14.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ Register. (f) The Company authorizes each Bank to disclose to any Participant or Assignee (each, a "Transferee") and ~~give notice~~ any prospective Transferee any and all financial information in such Bank's possession concerning the Company and its Affiliates which has been delivered to such Bank by or on behalf of the Company pursuant to this Agreement or which has been delivered to such ~~acceptance~~ Bank by or on behalf of the Company in connection with such Bank's credit evaluation of the Company and ~~recordation~~ its Affiliates prior to becoming a party to this Agreement so long as each such prospective Transferee shall execute a confidentiality agreement containing provisions substantially similar to the ~~Borrower~~provisions contained in the next succeeding sentences of this paragraph (f). On The Administrative Agent and each Bank shall hold nonpublic information obtained pursuant to the requirements of this Agreement other than information (i) that is, or ~~prior~~ generally becomes, available to ~~such effective date~~the public, ~~the Borrower, at its own expense, upon request, shall execute and deliver~~ (ii) that was or becomes available to the Administrative Agent or any Bank on a nonconfidential basis or (~~in exchange for~~ iii) that becomes available to the ~~Revolving~~ Administrative Agent or any Bank from a Person or other source that is not, to the best Arrow Electronics Credit ~~Note and/or applicable Term Notes~~Agreement knowledge of the Administrative Agent or such Bank, as the case may be, ~~of the assigning Lender)~~ otherwise bound by a ~~new Revolving Credit Note and/or applicable Term Notes, as the case may be,~~ confidentiality obligation to the ~~order~~ Company, in accordance with its customary procedures for treatment of ~~such Assignee~~ confidential information and in ~~an amount equal to the Revolving Credit Commitment and/or applicable Term Loans~~accordance with safe and sound banking practices and in any event, ~~as the case~~ may ~~be, assumed~~ make disclosure reasonably required by any Governmental Authority or ~~acquired by it~~ representative thereof pursuant to ~~such Assignment and Assumption and~~subpoena or other legal process or as otherwise required by law, ~~if the Assignor has retained a Revolving Credit Commitment and/or Term Loans~~order or regulation. Unless specifically prohibited by applicable law, ~~as the case may be~~regulation, 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 rule or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lendercourt order, the Administrative Agent and each Bank shall ~~promptly return~~ notify the Company of any request by any Governmental Authority or representative thereof (other than any such request in connection with an examination of the financial condition of the Administrative Agent or such Bank by such Governmental Authority) for disclosure of such information by the Administrative Agent or such Bank so that any of them may seek an appropriate protective order. Except as may be required by an order of a court of competent jurisdiction and to the ~~Borrower~~ extent set forth therein, neither the Administrative Agent nor any Bank shall be obligated or required to return any materials furnished by the Company. Nothing in this paragraph (f) shall prohibit the Administrative Agent or any Bank from disclosing nonpublic information to its examiners, regulators and professional advisors. Notwithstanding anything herein to the contrary, any party to this Agreement (and any employee, representative, or other agent of any party to this Agreement) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such ~~Note and/or Notes for cancellation~~tax treatment and tax structure. However, any such information relating to the tax treatment or tax structure is required to be kept confidential to the extent necessary to comply with any applicable federal or state securities laws. (fg) ~~For avoidance of doubt,~~ Nothing herein shall prohibit any Bank from pledging or assigning any Loan to any Federal Reserve Bank in accordance with applicable law or require any Bank to obtain the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender consent of any Loan Party in order to pledge or ~~Note~~ assign any Loan 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Arrow Electronics Inc)

Successors and Assigns; Participations and Assignments. ~~(a)~~ This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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~~. (b)~~ . Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States 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”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary~~validity of such sale. ~~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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an ~~additional~~ Eligible Assignee or to any other bank, financial institution or other entity approved by the Borrower and the Administrative Agent (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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d)~~ Section 10.6(c). The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) . Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~1,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower~~effective date determined pursuant thereto. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ . The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle (an “SPC”)~~above. Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~REIT, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10.shall 110.1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 ~~and~~ or 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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~~, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld)Agent, 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, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower,~~ Borrower and/or the Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the Borrower ~~and such other Persons~~and/or the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 the 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 ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date)~~. Notwithstanding any provision of this Section~~; provided that, except to the ~~consent of~~ extent otherwise expressly agreed by the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated.affected (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. Each Lender that sells a participation, acting for this purpose as a non-fiduciary agent (solely for tax purposes) shall maintain a register on which it enters the name and address of each participant and the principal amounts of each participant’s interest in the Commitments, Loans and other Obligations held by it (the “Participant Register”); provided that, no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any 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. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. 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 interest in the Commitments, Loans and other Obligations as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 (x) in connection with an assignment by or to the Arrangers, the Administrative Agent or their Control Investment Affiliates or (y) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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~~ (or outstanding Loans, as if the ~~case may be,~~ effective date of such assignment shall be after the Availability Period) assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a ~~Revolving Credit~~ Commitment ~~and/or Term~~ (or any outstanding 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~~ (or outstanding Loans~~, as the case may be,~~ ) retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement Closing~~ Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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~~ that, (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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~~ assign (h) No such assignment shall be made to (i) the Borrower or ~~a portion~~ any of the Borrower’s Affiliates or Subsidiaries, (ii) to any Defaulting Lender or any of its ~~interests~~ Subsidiaries, (iii) [intentionally omitted] or (iv) any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in clause (ii). (i) No such assignment shall be made to a natural Person (including, for the avoidance of doubt, any ~~Loans~~ holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person). (j) 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 ~~Granting Lender~~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 ~~prior written~~ 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 and each other Lender hereunder (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 Loansand interest accrued thereon), and (By) ~~disclose on a confidential basis~~ acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any ~~non-public information relating to its Loans to any rating agency, commercial paper dealer or provider~~ assignment of rights and obligations 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~~ Defaulting Lender hereunder shall become effective under applicable law without compliance with the ~~Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without~~ provisions of this paragraph, then the ~~written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time~~ assignee of such ~~proposed amendment~~interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Chatham Lodging Trust)

Successors and Assigns; Participations and Assignments. ~~(a)~~ This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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~~. (b)~~ . Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States 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”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary~~validity of such sale. ~~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”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an ~~additional~~ Eligible Assignee or to any other bank, financial institution or other entity approved by the Borrower and the Administrative Agent (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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d)~~ Section 10.6(c). The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) . Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and 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 $~~3,500 (treating multiple~~1,000, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower~~effective date determined pursuant thereto. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of 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 assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ . The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle (an “SPC”)~~above. Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: 364 Day Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the ~~Borrower~~ Borrowers may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, ~~without~~ with the consent of the ~~Borrower~~Company (which shall not be unreasonably withheld or delayed except in the case of any sale to an entity that is not a bank or an insurance company, in which case the Company may withhold consent for any reason or no reason), in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the ~~Borrower~~ Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 109. 1. The ~~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 Lender under this Agreement, ~~provided~~ provided, that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The ~~Borrower and each Lender~~ Borrowers also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; ~~provided~~ provided, that, in the case of Section 2.18, such Participant shall have complied with the requirements of said 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~~occurred and provided, ~~except to the extent such entitlement to receive a greater amount results from the adoption of~~further, ~~or a change in any Requirement of Law~~ that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be ~~conclusive absent manifest error,~~ subject to Sections 2.21 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 Register2.22. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent and with the consent of the Company (which shall not be unreasonably withheld or delayed except in the case of any assignment to an entity that is not a bank or an insurance company, in which case the Company may withhold consent for any reason or no reason), at any time and from time to time assign to any ~~Lender or any Affiliate or Related Fund thereof~~ Eligible Assignee or, with the consent of ~~(i)~~ the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the ~~Borrower~~ Borrowers (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (each, an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the~~ Administrative Agent or and the ~~Issuing Lenders~~ Borrowers is required pursuant to the foregoing provisions, by the ~~Borrower~~ Administrative Agent and ~~such other Persons~~the Borrowers) and delivered to the Administrative Agent for its acceptance and recording in the Register; ~~provided~~ provided, that no such assignment to an Assignee (other than any Lender or any ~~affiliate or~~ Affiliate, Related Fund ~~thereof~~or Control Investment Affiliate of a Lender) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 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 ~~Borrower and the~~ Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and 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 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 ~~Sections~~ Section 2.17, 2.18 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by or to two or more Related Funds shall be aggregated. Notwithstanding any provision of this Section, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers 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 Loans) at any reasonable time and from time to time upon reasonable prior notice”. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ~~connection~~ 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 ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 ~~Borrower~~Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes~~Note, as the case may be, of the assigning Lender) a new Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment, Term Loan Commitment and/or ~~applicable~~ the Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment, Term Loan Commitment and/or any Term Loans, as the case may be, upon request, a new Revolving Credit Note ~~and/or~~ or Term ~~Notes~~Note, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment, 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) ~~For avoidance of doubt, the~~ The parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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~~Requirements of 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (MVC Capital, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if 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, 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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 Borrower. On or prior to such effective 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 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

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 Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender may, without the consent of the Borrower, subject to applicable Gaming Laws and Liquor Laws and otherwise in accordance with all other applicable ~~law~~Requirements of Law, at any time sell to one or more banks, financial institutions or other ~~entities~~ Persons other than any Investor Party or any Affiliate of any Investor Party (each, a “Participant”) participating interests in any Loan owing to such ~~Lender, any Commitment of such~~ Lender or any other interest of such Lender hereunder and under the other Loan ~~Documents~~Documents and with respect to any such Persons (to the extent required under applicable Gaming Laws) is not the subject of a Disqualification. 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 other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 109. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18 and 2.19~~ 2.14 or 2.15 with respect to its participation in ~~the Commitments and~~ the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, subject to applicable Gaming Laws and Liquor Laws and otherwise in accordance with all other applicable ~~law~~Requirements of Law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other ~~entity~~ Person other than any Investor Party or any Affiliate of any Investor Party and with respect to any such Persons (to the extent required under applicable Gaming Laws) is not the subject of a Disqualification (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the~~ Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Administrative Agent) and delivered to the Administrative Agent 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 (i) be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement)) or (ii) result in the Assignor holding interests in Loans under this Agreement in an aggregate principal amount of less than $1,000,000, unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit CommitmentsAgent, and ~~$1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon~~ upon such execution, delivery, acceptance and 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 ~~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 ~~Sections 2.17~~Section 2.13, ~~2.18~~ 2.14 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the ~~Commitment of, and~~ principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and ~~any Notes~~ each Note evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of ~~any other Person~~ the Administrative Agent is required by Section ~~10.6(c~~9.6(c), by ~~each such other Person~~the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $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 connection with an assignment by or to a Barclays Entity~~), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective 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,~~ Notes of the assigning Lender) a new ~~Revolving Credit Note and/or applicable Term Notes, as the case may be,~~ Notes 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,~~ Loans assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained ~~a Revolving Credit Commitment and/or Term Loans, as the case may be,~~ Loans upon request, a new ~~Revolving Credit Note and/or Term Notes, as the case may be,~~ Notes 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,~~ Loans retained by it hereunder. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the ~~Note or~~ Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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~~ hold all or any part of any Loan that such Granting Lender would otherwise ~~be obligated to make to the Borrower~~ hold 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 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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 ~~10.6(g~~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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (NGA Holdco, LLC)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that Holdings and 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. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the ~~Administrative Agent~~ Borrower and ~~so long as no Default or Event~~ the Agents, and in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of each 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 by any ▇▇▇▇▇▇ Entity and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the ~~Administrative Agent~~ Agents or the Issuing ~~Lenders~~ Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent 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 of less than $5,000,000, in the case of ~~any assignment of~~ the Revolving Credit ~~Commitments~~Facility, ~~and~~ or $1,000,000, in the case of ~~any assignment of~~ the Term ~~Loans~~ Loan Facility (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 the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 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 ~~Sections 2.17~~Section 2.19, ~~2.18~~ 2.20 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the 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 (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 ~~Register~~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 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 one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person 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 $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 ~~Barclays Entity~~▇▇▇▇▇▇ 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), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ 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 Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Term Loan Note or Revolving Credit ~~Note and/or applicable Term Notes~~Note, as ~~the case may be~~applicable, of the assigning Lender) a new Term Loan Note or 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 to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment ~~and/or Term Loans, as the case may be,~~ upon request, a new Term Loan Note or 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 ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ 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 10.6(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. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Extendicare Health Services Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that 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. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the Borrower and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. 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~~law (except as limited by this Agreement), 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 11.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~4.9, ~~2.18~~ 4.10 and ~~2.19~~ 4.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was 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,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the 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”") may, in accordance with applicable law, at any time and from time to time ~~assign~~ assign, to (i) any Lender, any Affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund thereof ~~or,~~ or (ii) with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; ~~provided~~ provided, that (A) no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 500,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and~~Agent, ~~after giving effect to such assignment, the assigning Lender~~ (~~if it shall retain any Revolving Credit Commitment or Loans~~B) ~~shall have Commitments and Loans aggregating at least $5,000,000,~~ in the case of any assignment of Revolving ~~Credit Commitments~~Commitments (other than to a Lender or an Affiliate of a Lender), the consent of Borrower the Issuing Lender and ~~$1,000,000~~the Swing Line Lender shall be required, (C) no consent shall be required for any assignment by the Administrative Agent or any of its Affiliates and (D) no consent of the Borrower shall be required for any assignment of Term Loans. Notwithstanding the foregoing, the Borrower's consent (which shall not be unreasonably withheld or delayed) shall be required for any assignment to any company which is engaged in a business that is substantially similar to the Borrower or is a competitor of the Borrower. For purposes of the proviso contained in the ~~case~~ preceding sentence, the amount described therein shall be aggregated in respect of ~~the Term Loans~~each Lender and its related Approved Funds, if any. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 11.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ 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 ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 11.6(c). (d) The Administrative Agent shall, on behalf of the 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 (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ 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 ~~Register~~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 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 ~~in the same aggregate principal amount~~ shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~11.6(c), ~~by each such other Person)~~ together with ~~payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple~~any tax forms required herein, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) 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~~ on the ~~Borrower. On or prior to such~~ effective 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 date determined pursuant 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 Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower 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 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 party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ 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 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 10.6(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 expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period 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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Sources: Credit Agreement (Jondex Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the ~~Agents~~Issuing Lender, the Fronting Lenders, the Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the Borrower~~ Packard 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. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender 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 other Loan Documents, and the ~~Borrower~~ Borrowers and the ~~Agents~~ 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 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 any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ 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, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 13.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~5.11, ~~2.18~~ 5.12 and ~~2.19~~ 5.13 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~5.12, such Participant shall have complied with the requirements of said ~~Section,~~ 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, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States 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 or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ Packard and the Administrative Agent (and ~~so long as no Default or Event~~ in the case of ~~Default has occurred~~ assignments of Revolving Credit Commitments, each Fronting Lender and ~~is continuing~~the Issuing Lender), ~~the Borrower (which,~~ which consent in each ~~case, shall~~ case will not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, N executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower~~an Assignee that is not then a Lender or an affiliate thereof, by Packard and the Administrative ~~Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons~~Agent) and delivered to the Administrative Agent for its ~~acceptance and recording in the Register~~acceptance; 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 of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by ~~the Borrower~~ Packard and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and 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 ~~Commitments~~ a 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~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 13.6, the consent of Packard shall not be required, and, unless requested by the ~~Borrower~~ Assignee and/or the Assignor, new Notes shall not be required to be executed and delivered by the Borrowers, for any assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 10(f) shall have occurred and be ~~continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments~~ continuing with respect to ~~or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Packard. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing 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 Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the 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 Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an affiliate thereof, by ~~each such other Person~~Packard and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, 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 connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall ~~(i)~~ promptly accept such Assignment and ~~Assumption~~ Acceptance. (e) Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing Indebtedness of the Borrowers to such Lender resulting from each Loan of such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement, 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 any Borrower's obligations hereunder or under any Note. At the request of the Administrative Agent, each Fronting Lender will provide to the Administrative Agent a copy of its records maintained pursuant to this Section. (iif) The Loans made by each Lender shall be evidenced by a Note issued by the relevant Borrower, substantially in the form of Exhibit ▇-▇, ▇-▇ ▇▇ ▇-▇, as the case may be, payable to the order of such Lender. Each Lender is hereby authorized to record, on the ~~effective date determined pursuant thereto record~~ 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 ~~contained therein~~ so recorded, provided that the failure to make any such recordation or any error in ~~the Register and give notice of~~ such ~~acceptance and~~ recordation ~~to the~~ shall not affect any Borrower's obligations hereunder or under any Note. On or prior to ~~such~~ the effective ~~date~~date of an Assignment and Acceptance, ~~the~~ each relevant Borrower, at its own expense~~, upon request~~, shall execute and deliver to the Administrative ~~Agent (~~Agent, in exchange for the ~~Revolving Credit Note and/or applicable Term~~ relevant 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 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, Notes to the order of the ~~Assignor in an amount equal to~~ Assignee and, if applicable, the ~~Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder~~Assignor. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the ~~Note or~~ Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 13.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, 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 (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 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 party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other 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 10.6(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. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Sources: Credit Agreement (Packard Bioscience Co)

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