Common use of Assignments, Participations, etc Clause in Contracts

Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Company (which consent shall not be required during the existence of an Event of Default), the Administrative Agent (and in the case of Canadian Commitments and Canadian Loans, the Canadian Agent) and each Issuing Lender, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company, the Administrative Agent, the Canadian Agent or any Issuing Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an "Assignee") all, or any ratable part of all, of the Loans, the Commitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum amount of U.S.$5,000,000 (in the case of U.S. Loans, U.S. Commitments or L/C Obligations) or C$5,000,000 (in the case of Canadian Loans or Canadian Commitments) (or, if less, the amount of such Lender's Commitment); provided, however, that the Company, the Administrative Agent and the Canadian Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to the Company and the Administrative Agent by such Lender and the Assignee; (ii) such Lender and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit D ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) such Lender or the Assignee has paid to the Administrative Agent a processing fee in the amount of U.S.$3,500. (b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received and provided its consent (and, to the extent required, received the consent of the Canadian Agent, each Issuing Lender and the Company) with respect to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents have

Assignments, Participations, etc. (a) Any Lender may, with the written consent of the Company (which consent shall not be required during the existence of an Event of Default), the Administrative Agent (and in the case of Canadian Commitments and Canadian Loans, the Canadian Agent) and each Issuing Lender, at any time assign and delegate to one or more Eligible Assignees (provided that no written consent of the Company, the Administrative Agent, the Canadian Agent or any Issuing Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an "Assignee") all, or any ratable part of all, of the Loans, the Commitments, the L/C Obligations and the other rights and obligations of such Lender hereunder, in a minimum amount of U.S.$5,000,000 (in the case of U.S. Loans, U.S. Commitments or L/C Obligations) or C$5,000,000 (in the case of Canadian Loans or Canadian Commitments) (or, if less, the amount of such Lender's Commitment); provided, however, that the Company, the Administrative Agent and the Canadian Agent may continue to deal solely and directly with such Lender in connection with the interest so assigned to an Assignee until (i) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to the Company and the Administrative Agent by such Lender and the Assignee; (ii) such Lender and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance in the form of Exhibit D ("Assignment and Acceptance") together with any Note or Notes subject to such assignment and (iii) such Lender or the Assignee has paid to the Administrative Agent a processing fee in the amount of U.S.$3,500. (b) From and after the date that the Administrative Agent notifies the assignor Lender that it has received and provided its consent (and, to the extent required, received the consent of the Canadian Agent, each Issuing Lender and the Company) with respect to an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender under the Loan Documents, and (ii) the assignor Lender shall, to the extent that rights and obligations hereunder and under the other Loan Documents havehave been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents. (c) Within five Business Days after the effectiveness of any Assignment and Acceptance pursuant to subsection 12.8(a)), the applicable Borrower shall, upon request, execute and deliver to the Administrative Agent a new Note evidencing the applicable Assignee's assigned Loans and Commitment and, if the assignor Lender has retained a portion of its Loans and its Commitment, a replacement Note in the principal amount of the Commitment retained by the assignor Lender (such Notes to be in exchange for, but not in payment of, the Notes held by the assignor Lender). Immediately upon the effectiveness of any Assignment and Acceptance, this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee and/or the resulting adjustment of the Commitments arising therefrom. (d) Any Lender may at any time, with notice to the Company, sell to one or more commercial banks or other Persons not Affiliates of the Company (a "Participant") participating interests in any Loans, the Commitment of such Lender and the other interests of such Lender (the "originating Lender") hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender's obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Company, each Issuing Lender, the Canadian Agent and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender's rights and obligations under this Agreement and the other Loan Documents, and (iv) no Lender shall transfer or grant any participating interest under which a Participant has rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in the first proviso to Section 12. 1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 4.1, 4.3,

Assignments, Participations, etc. (a) Any U.S. Lender may, with the written consent of the Company (which consent shall not be required and the Canadian Company at all times other than during the existence of an Event of Default), Default and the Administrative Agent (and in the case of Canadian Commitments and Canadian LoansAgent, the Canadian Agent) and each Issuing Lenderwhich consents shall not be unreasonably withheld, at any time assign and delegate to one or more Eligible Assignees Persons (provided provided, that no written consent of the Company, the Canadian Company or the Administrative Agent, the Canadian Agent or any Issuing Lender shall be required in connection with any assignment and delegation by a Lender to an Eligible Assignee that is an Affiliate of such Lender) (each an "“Assignee"”) all, or any ratable part of all, of the Loans, the Commitments, the L/C Obligations Commitments and the other rights and obligations of such U.S. Lender hereunder, in a minimum amount of U.S.$5,000,000 Five Million Dollars (in the case of U.S. Loans, U.S. Commitments or L/C Obligations) or C$5,000,000 (in the case of Canadian Loans or Canadian Commitments) (or, if less, the amount of such Lender's Commitment$5,000,000); provided, however, that the Company, Company and the Administrative Agent and the Canadian Agent may continue to deal solely and directly with such U.S. Lender in connection with the interest so assigned to an Assignee until (iA) written notice of such assignment, together with payment instructions, addresses and related information with respect to the such Assignee, shall have been given to the Company and the Administrative Agent by such U.S. Lender and the such Assignee; (iiB) such U.S. Lender and its Assignee shall have delivered to the Company and the Administrative Agent an Assignment and Acceptance Assumption in the form of Exhibit D H ("“Assignment and Acceptance"”) together with any Revolving Note or Revolving Notes (and, if applicable, any Canadian Loan Note or Canadian Loan Notes) subject to such assignment and (iiiC) such the assignor U.S. Lender or the Assignee has paid to the Administrative Agent a processing fee in the amount of U.S.$3,500Three Thousand Five Hundred Dollars ($3,500). Except as expressly provided otherwise, no U.S. Lender may assign or delegate any or all of its Loans, Commitment or other rights and obligations of such U.S. Lender hereunder except in connection with an assignment or delegation of the Canadian Loans and Canadian Commitment of such U.S. Lender’s related Canadian Lender in accordance with the terms of this Section 10.8, and no U.S. Lender shall assign all of its Commitments and Loans unless the assignee U.S. Lender has an Eligible Canadian Affiliate which agrees to assume all of the obligations of the related Canadian Lender. Except as expressly provided otherwise, no Canadian Lender may assign or delegate any or all of its Canadian Loans, Canadian Commitment or other rights and obligations of such Canadian Lender hereunder except in connection with an assignment or delegation of the Loans and Commitment of such Canadian Lender’s related U.S. Lender in accordance with the terms of this Section 10.8, and no Canadian Lender shall assign all of its Canadian Commitments and Canadian Loans unless the assignee U.S. Lender has an Eligible Canadian Affiliate which agrees to assume all of the obligations of the Canadian Lender. (b) From and after the date that the Administrative Agent notifies the assignor U.S. Lender that it has received (and provided its consent (and, to the extent required, received the consent of the Canadian Agent, each Issuing Lender and the Company) with respect to to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder (and its Eligible Canadian Affiliate, if applicable) shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a U.S. Lender (and such Eligible Canadian Affiliate, if applicable, shall have the rights and obligations of a Canadian Lender) under the Loan Documents, and (ii) the assignor U.S. Lender (and its related Canadian Lender, if applicable) shall, to the extent that rights and obligations hereunder and under the other Loan Documents havehave been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Loan Documents (and in the case of an Assignment and Acceptance covering all or the remaining portion of an assigning U.S. Lender’s (and its related Canadian Lender’s, if applicable) rights and obligations under this Agreement, such U.S. Lender (and its related Canadian Lender, if applicable) shall cease to be a party hereto). (c) Within five Business Days after its receipt of notice by the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee (and provided, that it consents to such assignment pursuant to subsection 10.8(a)), the Company (and, if applicable, the Canadian Company) shall execute and deliver to the Administrative Agent new Revolving Notes (and, if applicable, Canadian Loan Notes) evidencing such Assignee’s assigned Loans and Commitment (and, if applicable, Canadian Commitment) and, if the assignor U.S. Lender has retained a portion of its Loans and its Commitment (and, if applicable, its related Canadian Lender has retained a portion of its Loans and Canadian Commitment), replacement Revolving Notes (and, if applicable, Canadian Loan Notes) in the principal amount of the Loans retained by the assignor U.S. Lender and, if applicable, its related Canadian Lender (such Revolving Notes or Canadian Loan Notes to be in exchange for, but not in payment of, the Revolving Notes or Canadian Loan Notes held by such U.S. Lender and, if applicable, its related Canadian Lender). Immediately upon each Assignee’s making its processing fee payment under the Assignment and Acceptance, this Agreement, shall be deemed to be amended to the extent, but only to the extent, necessary to reflect the addition of the Assignee (and, if applicable, its Eligible Canadian Affiliate) and the resulting adjustment of the Commitments (and, if applicable, the Canadian Commitments) arising therefrom. The Commitment (or Canadian Commitment) allocated to each Assignee (or its Eligible Canadian Affiliate, if applicable) shall reduce such Commitment (or Canadian Commitment) of the assigning U.S. Lender (or its related Canadian Lender) pro tanto. (d) Any Lender may, upon prior written notice to the Company, the Canadian Company, BOA Canada and the Administrative Agent, at any time sell to one or more commercial banks or other Persons not Affiliates of the Company or the Canadian Company (a “Participant”) participating interests in any Loans, the Commitment (or Canadian Commitment) of that Lender and the other interests of that Lender (the “originating Lender”) hereunder and under the other Loan Documents; provided, however, that (i) the originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Company, the Canadian Company, BOA Canada and the Administrative Agent shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s rights and 1. In the case of any such participation, the Participant shall be entitled to the benefit of Sections 3.1, 3.3 and 10.5, with respect to its participation interest, as though it were also a Lender hereunder and subject to the same qualifications and limitations as if it were a Lender hereunder, and provided there is no duplicate recovery, but shall not have any other rights under this Agreement, or any of the other Loan Documents, and all amounts payable by the Company or the Canadian Company hereunder shall be determined as if such Lender had not sold such participation; except that, if amounts outstanding under this Agreement are due and unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement. (e) Each Lender agrees to take normal and reasonable precautions and exercise due care to maintain the confidentiality of all information provided to it by the Company or any Subsidiary of the Company, or by the Administrative Agent or BOA Canada on such Company’s or Subsidiary’s behalf, in connection with this Agreement or any other Loan Document, and neither it nor any of its Affiliates shall use any such information for any purpose or in any manner other than pursuant to the terms contemplated by this Agreement; except to the extent such information (i) was or becomes generally available to the public other than as a result of a disclosure by such Lender, or (ii) was or becomes available on a non-confidential basis from a source other than the Company or the Canadian Company, provided, that such source is not bound by a confidentiality agreement with the Company or the Canadian Company known to such Lender; provided, further, however, that any Lender may disclose such information (A) at the request or pursuant to any requirement of any Governmental Authority to which such Lender is subject or in connection with an examination of such Lender by any such authority; (B) pursuant to subpoena or other court process; (C) when required to do so in accordance with the provisions of any applicable Requirement of Law; (D) to the extent reasonably required in connection with any litigation or proceeding to which the Administrative Agent, BOA Canada, any Lender or their respective Affiliates may be party, (E) to the extent reasonably required in connection with the exercise of any remedy hereunder or under any other Loan Document, and (F) to such Lender’s independent auditors and other professional advisors, provided that each such Person has agreed to preserve the confidentiality of such material. Notwithstanding the foregoing, the Company and the Canadian Company authorizes each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and to any prospective Transferee, such financial and other information in such Lender’s possession concerning the Company or its Subsidiaries which has been delivered to any Agent or any Lender pursuant to this Agreement or which has been delivered to any Agent or any Lender by the Company or the Canadian Company in connection with the Lenders’ credit evaluation of the Company or the Canadian Company prior to entering into this Agreement; provided, that, unless otherwise agreed by the Company and the Canadian Company, such Transferee agrees in writing to such Lender to keep such information confidential to the same extent required of the Lenders hereunder. In the event that any Agent or Lender or any recipient of nonpublic information obtained pursuant to clause (E) above is required or requested to disclose any confidential information pursuant to clauses (A)-(D) above, such recipient shall give the Company and the Canadian Company prompt prior written notice of such requirement or request so that the Company or the Canadian Company may seek an appropriate protective order, and, at the expense of the Company or the Canadian Company, such recipient shall cooperate with the Company or the Canadian Company in any proceedings to obtain such a protective order to the extent such cooperation is necessary to obtain such protective order and to the extent the recipient determines its cooperation will not be disadvantageous to it. In the absence of a protective order, if the recipient is nonetheless compelled or required to disclose such confidential information in the opinion of its legal counsel, it may disclose such confidential information, provided that the recipient shall give the Company and the Canadian Company written notice of the confidential information to be disclosed as far in advance of the disclosure as is practicable and, upon the request and at the expense of the Company or the Canadian Company, shall use its reasonable effects to obtain assurances that confidential treatment shall be accorded such information by the receiving party. (f) Notwithstanding any other provision contained in this Agreement or any other Loan Document to the contrary, any Lender may assign all or any portion of the Loans or Revolving Notes held by it to any Federal Reserve Bank or the United States Treasury as collateral security pursuant to Regulation A of the Federal Reserve Board and any Operating Circular issued by such Federal Reserve Bank, provided, that any payment in respect of such assigned Loans or Revolving Notes made by the Company to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Company’s obligations hereunder in respect to such assigned Loans or Revolving Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder. (g) BOA may assign its obligations as an Issuer to an Affiliate of BOA, and BOA Canada may assign its obligation as a Canadian Issuer to an Affiliate of BOA Canada, each without the prior written consent of any party hereto. In connection with such assignment, each of the parties hereto agrees to execute such documents as are reasonably requested by such Affiliate of BOA or BOA Canada to effectuate such assignment. (h) Notwithstanding anything to the contrary contained herein, if at any time BOA or BOA Canada, as applicable, assigns all of its Commitment and Loans pursuant to subsection 10.8(a) above, BOA or BOA Canada may, (i) upon 30 days’ notice to the Company, the Canadian Company and the Lenders, resign in its capacity as the Issuer or the Canadian Issuer, as applicable, hereunder and/or (ii) upon 30 days’ notice to the Company, resign in its capacity as the provider of Swing Line Loans (the “Swing Line Lender”). In the event of any such resignation as the Issuer, the Canadian Issuer or the Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a successor Issuer, Canadian Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of BOA or BOA Canada, as applicable, as the Issuer, the Canadian Issuer or the Swing Line Lender, as the case may be. If BOA resigns as the Issuer, or if BOA Canada resigns as the Canadian Issuer, it shall retain all the rights and obligations of the Administrative Agent as the Issuer or Canadian Issuer hereunder with respect to all Letters of Credit or Canadian Letters of Credit outstanding as of the effective date of its resignation as the Issuer or Canadian Issuer (including the right to require the U.S. Lenders to make Revolving Loans or fund participations therein and the right to require the Canadian Lenders to make Canadian Loans or fund participations herein pursuant to subsection 2.15(a)). If BOA resigns as the Swing Line Lender, it shall retain all the rights of the Administrative Agent as the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the U.S. Lenders to make Revolving Loans or fund participations in outstanding Swing Line Loans pursuant to subsection 2.16(c). The Company, the Canadian Company, the Lenders and BOA agree that they shall amend this Agreement as necessary to reflect that BOA remains the Administrative Agent and BOA Canada for purposes of administering this Agreement, but has resigned in its capacity as the Issuer, the Canadian Issuer and/or the Swing Line Lender and another Lender(s) shall provides such service, including the obligation of the successor to BOA as the Issuer, or BOA Canada as the Canadian Issuer, to issue letters of credit in substitution for the Letters of Credit and/or Canadian Letters of Credit, if any, outstanding at the time of such succession or to make other arrangements satisfactory to BOA and/or BOA Canada to effectively assume the obligations of BOA and/or BOA Canada with respect to such Letters of Credit and/or Canadian Letters of Credit.