AGENTS AND LENDERS rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that Agent or any Lender may have under any other agreement, including the other Loan Documents, by operation of law or otherwise. Recourse to the Collateral shall not be required.
Relations Among Lenders (A) Except with respect to the exercise of set-off rights of any Lender in accordance with Section 12.1, the proceeds of which are applied in accordance with this Agreement, and except as set forth in the following sentence, each Lender agrees that it will not take any action, nor institute any actions or proceedings, against the Borrower or any other obligor hereunder or with respect to any Loan Document, without the prior written consent of the Required Lenders or, as may be provided in this Agreement or the other Loan Documents, at the direction of the Agent.
(B) The Lenders are not partners or co-venturers, and no Lender shall be liable for the acts or omissions of, or (except as otherwise set forth herein in case of the Agent) authorized to act for, any other Lender. The Agent shall have the exclusive right on behalf of the Lenders to enforce on the payment of the principal of and interest on any Loan after the date such principal or interest has become due and payable pursuant to the terms of this Agreement.
AGENT AND LENDERS KEYBANK NATIONAL ASSOCIATION, individually as a Lender and as Agent By: /s/ Xxxxxxx Xxxxxxxxxxx Name: Xxxxxxx Xxxxxxxxxxx Title: Vice President BBVA USA, an Alabama banking corporation f/k/a Compass Bank, individually as a Lender and as a Co-Syndication Agent By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Senior Vice President CAPITAL ONE, NATIONAL ASSOCIATION, individually as a Lender and as a Co-Syndication Agent By:/s/ Xxxxx XxXxxxxx Name: Xxxxx XxXxxxxx Title: Duly Authorized Signatory SUNTRUST BANK, individually as a Lender and as a Co-Syndication Agent By:/s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Director By:/s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Director FIFTH THIRD BANK, an Ohio Banking Corporation, individually as a Lender and as a Co-Documentation Agent By:/s/ Xxxx Xxxxxxxxx Name: Xxxx Xxxxxxxxx Title: Director II XXXXXXX XXXXXXX BANK, individually as a Lender and as a Co-Documentation Agent By:/s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx Title: Senior Vice President By:/s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Director By:/s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Senior Vice President By:/s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Senior Vice President By:/s/ Szu Xxx Xxxxx Name: Szu Xxx Xxxxx Title: VP & General Manager VALLEY NATIONAL BANK, a national banking association By:/s/ Xxxxxxxx Xxxxxx Name: Xxxxxxxx Xxxxxx Title: VP WOODFOREST NATIONAL BANK, a national banking association By:/s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Senior Vice President - Corporate Banking By:/s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Senior Vice President By:/s/ Xxxxx X. Xxxx Name: Xxxxx X. Xxxx Title: Senior Vice President By:/s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Executive Vice President By:/s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: EVP By:/s/ Xxxx Xxxxxx Name: Xxxx Xxxxxx Title: Vice President By:/s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: Sr. Vice President $______________ _____________, 20__ FOR VALUE RECEIVED, the undersigned (“Maker”), hereby promises to pay to ________________ __________________ (“Payee”), or order, in accordance with the terms of that certain Fourth Amended and Restated Credit Agreement, dated as of August 7, 2019, as from time to time in effect, by and among Maker, KeyBank National Association, for itself and as Agent, and such other Lenders as may be from time to time named therein (the “Credit Agreement”), to the extent not sooner paid, on or before the Revolving Credit Maturity Date, the principal sum of _________________ ($__________), or such amount as may be advanced by the Payee under the Credit Agreement as a Revolving Credit Loan with daily interest from the date thereof, computed as provided in the Credit Agreement, on the principal amount hereof from time to time unpaid, at a rate per annum on each portion of the principal amount which shall at all times be equal to the rate of interest applicable to such portion in accordance with the Credit Agreement, and with interest on overdue principal and, to the extent permitted by Applicable Law, on overdue installments of interest and late charges at the rates provided in the Credit Agreement. Interest shall be payable on the dates specified in the Credit Agreement, except that all accrued interest shall be paid at the stated or accelerated maturity hereof or upon the prepayment in full hereof. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement. Payments hereunder shall be made to the Agent for the Payee at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, or at such other address as Agent may designate from time to time. This Amended and Restated Revolving Credit Note (this “Note”) is one of one or more Revolving Credit Notes evidencing borrowings under and is entitled to the benefits and subject to the provisions of the Credit Agreement. The principal of this Note may be due and payable in whole or in part prior to the Revolving Credit Maturity Date and is subject to mandatory prepayment in the amounts and under the circumstances set forth in the Credit Agreement, and may be prepaid in whole or from time to time in part, all as set forth in the Credit Agreement. Notwithstanding anything in this Note to the contrary, all agreements between the undersigned Maker and the Lenders and the Agent, whether now existing or hereafter arising and whether written or oral, are hereby limited so that in no contingency, whether by reason of acceleration of the maturity of any of the Obligations or otherwise, shall the interest contracted for, charged or received by the Lenders exceed the maximum amount permissible under Applicable Law. If, from any circumstance whatsoever, interest would otherwise be payable to the Lenders in excess of the maximum lawful amount, the interest payable to the Lenders shall be reduced to the maximum amount permitted under Applicable Law; and if from any circumstance the Lenders shall ever receive anything of value deemed interest by Applicable Law in excess of the maximum lawful amount, an amount equal to any excessive interest shall be applied to the reduction of the principal balance of the Obligations of the undersigned Maker and to the payment of interest or, if such excessive interest exceeds the unpaid balance of principal of the Obligations of the undersigned Maker, such excess shall be refunded to the undersigned Maker. All interest paid or agreed to be paid to the Lenders shall, to the extent permitted by Applicable Law, be amortized, prorated, allocated and spread throughout the full period until payment in full of the principal of the Obligations of the undersigned Maker (including the period of any renewal or extension thereof) so that the interest thereon for such full period shall not exceed the maximum amount permitted by Applicable Law. This paragraph shall control all agreements between the undersigned Maker and the Lenders and the Agent. In case an Event of Default shall occur, the entire principal amount of this Note may become or be declared due and payable in the manner and with the effect provided in said Credit Agreement. This Note shall, pursuant to New York General Obligations Law Section 5-1401, be governed by the laws of the State of New York. The undersigned Maker and all guarantors and endorsers hereby waive presentment, demand, notice, protest, notice of intention to accelerate the indebtedness evidenced hereby, notice of acceleration of the indebtedness evidenced hereby and all other demands and notices in connection with the delivery, acceptance, performance and enforcement of this Note, except as specifically otherwise provided in the Credit Agreement, and assent to extensions of time of payment or forbearance or other indulgence without notice. This Note, together with other Amended and Restated Revolving Credit Notes as of even date herewith, is delivered in amendment and restatement of the “Revolving Credit Notes” as such term is defined in the Existing Credit Agreement. This Note is not intended to, nor shall it be construed to, constitute a novation of the indebtedness due under the Credit Agreement or the obligations evidenced thereby.
LENDERS KeyBank, the other lending institutions which are party hereto and any other Person which becomes an assignee of any rights of a Lender pursuant to §18 (but not including any participant as described in §18). The Issuing Lender shall be a Lender, as applicable. The Swing Loan Lender shall be a Lender.
Designated Lenders (i) Subject to the terms and conditions set forth in this Section 12.1.2, any Lender may from time to time elect to designate an Eligible Designee to provide all or any part of the Loans to be made by such Lender pursuant to this Agreement; provided that the designation of an Eligible Designee by any Lender for purposes of this Section 12.1.2 shall be subject to the approval of the Agent (which consent shall not be unreasonably withheld or delayed). Upon the execution by the parties to each such designation of an agreement in the form of Exhibit F hereto (a “Designation Agreement”) and the acceptance thereof by the Agent, the Eligible Designee shall become a Designated Lender for purposes of this Agreement. The Designating Lender shall thereafter have the right to permit the Designated Lender to provide all or a portion of the Loans to be made by the Designating Lender pursuant to the terms of this Agreement and the making of such Loans or portion thereof shall satisfy the obligations of the Designating Lender to the same extent, and as if, such Loan was made by the Designating Lender. As to any Loan made by it, each Designated Lender shall have all the rights a Lender making such Loan would have under this Agreement and otherwise; provided, (x) that all voting rights under this Agreement shall be exercised solely by the Designating Lender, (y) each Designating Lender shall remain solely responsible to the other parties hereto for its obligations under this Agreement, including the obligations of a Lender in respect of Loans made by its Designated Lender and (z) no Designated Lender shall be entitled to reimbursement under Article III hereof for any amount which would exceed the amount that would have been payable by the Borrowers to the Lender from which the Designated Lender obtained any interests hereunder. No additional Notes shall be required with respect to Loans provided by a Designated Lender; provided, however, to the extent any Designated Lender shall advance funds, the Designating Lender shall be deemed to hold the Notes in its possession as an agent for such Designated Lender to the extent of the Loan funded by such Designated Lender. Such Designating Lender shall act as administrative agent for its Designated Lender and give and receive notices and communications hereunder. Any payments for the account of any Designated Lender shall be paid to its Designating Lender as administrative agent for such Designated Lender and neither the Borrowers nor the Agent shall be responsible for any Designating Lender’s application of such payments. In addition, any Designated Lender may (1) with notice to, but without the consent of, the Borrowers or the Agent, assign all or portions of its interests in any Loans to its Designating Lender or to any financial institution consented to by the Agent providing liquidity and/or credit facilities to or for the account of such Designated Lender and (2) subject to advising any such Person that such information is to be treated as confidential in accordance with Section 9.11, disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any guarantee, surety or credit or liquidity enhancement to such Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not institute against, or join any other Person in instituting against, any Designated Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceedings under any federal or state bankruptcy or similar law for one year and a day after the payment in full of all outstanding senior indebtedness of any Designated Lender. This Section 12.1.2 shall survive the termination of this Agreement.
Financing Commitments Parent has delivered to the Company a true and complete copy as of the date hereof of the executed financing commitment letter, dated September 9, 2015, by and among Parent and Xxxxxx Xxxxxxx Senior Funding, Inc. and the other financial institutions party thereto from time to time, including all exhibits, schedules, annexes and amendments to such letter in effect on the date hereof (the “Commitment Letter”) and a true and correct copy of any related fee letter (collectively, the “Ancillary Letters”) (provided that percentages and amount of (i) the fees, (ii) the economic provisions of the market flex, (iii) the fee-related provisions of the alternate transaction provisions and (iv) the successful syndication definition in the Ancillary Letters may be redacted). The Commitment Letter is in full force and effect as of the date of this Agreement, and the commitments contained in the Commitment Letter have not been withdrawn, modified, rescinded or terminated or otherwise amended, supplemented or modified in any respect prior to the date of this Agreement. The Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the knowledge of Parent, the other parties thereto (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity whether considered in a proceeding in equity or at law). Assuming the Financing is received as contemplated by the Commitment Letter, the aggregate amount of net proceeds from the Financing, together with cash, cash equivalents and current financial assets of Parent and its Subsidiaries on hand, will be, as of the Closing Date, sufficient to satisfy all of the Parent’s obligations under this Agreement, including the payment of any Subject Indebtedness required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Offer or the Merger and all other costs and expenses required to be paid or satisfied by Parent in connection with the transactions contemplated by this Agreement. There are no side letters or other agreements, contracts or arrangements relating to the Financing contemplated by the Commitment Letter other than the Ancillary Letters and customary engagement letters, which engagement letters do not contain any condition to the availability or timing of the Financing contemplated by the Commitment Letter. As of the date of this Agreement, (A) no event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach by the Parent and (B) subject to the satisfaction of the conditions contained in Section 5.1 and Annex A hereof, Parent does not have any reason to believe that the Financing contemplated by the Commitment Letter will not be available to Parent or Merger Sub at the Closing. Parent has fully paid all commitment fees or other fees, if any, required by the Commitment Letter to be paid prior to the date of this Agreement. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Commitment Letter.
Non-Funding Lenders (i) Unless Collateral Agent shall have received notice from a Lender prior to the date of any Term Loan that such Lender will not make available to Collateral Agent such Lender’s Pro Rata Share of such Term Loan, Collateral Agent may assume that such Lender will make such amount available to it on the date of such Term Loan in accordance with Section 2(b) of this Exhibit B, and Collateral Agent may (but shall not be obligated to), in reliance upon such assumption, make available a corresponding amount for the account of Borrower on such date. If and to the extent that such Lender shall not have made such amount available to Collateral Agent, such Lender and Borrower severally agree to repay to Collateral Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the day such amount is made available to Borrower until the day such amount is repaid to Collateral Agent, at a rate per annum equal to the interest rate applicable to the Obligation that would have been created when Collateral Agent made available such amount to Borrower had such Lender made a corresponding payment available. If such Lender shall repay such corresponding amount to Collateral Agent, the amount so repaid shall constitute such Lender’s portion of such Term Loan for purposes of this Agreement.
(ii) To the extent that any Lender has failed to fund any Term Loan or any other payments required to be made by it under the Loan Documents after any such Term Loan is required to be made or such payment is due (a “Non-Funding Lender”), Collateral Agent shall be entitled to set off the funding short-fall against that Non-Funding Lender’s Pro Rata Share of all payments received from Borrower. The failure of any Non-Funding Lender to make any Term Loan or any payment required by it hereunder shall not relieve any other Lender (each such other Lender, an “Other Lender”) of its obligations to make such Term Loan, but neither any Other Lender nor Collateral Agent shall be responsible for the failure of any Non-Funding Lender to make such Term Loan or make any other payment required hereunder. Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “Lender” (or be included in the calculation of “Required Lender” hereunder) for any voting or consent rights under or with respect to any Loan Document. At Borrower’s request, Collateral Agent or a Person reasonably acceptable to Collateral Agent shall have the right with Collateral Agent’s consent and in Collateral Agent’s sole discretion (but Collateral Agent or any such Person shall have no obligation) to purchase from any Non-Funding Lender, and each Lender agrees that if it becomes a Non-Funding Lender it shall, at Collateral Agent’s request, sell and assign to Collateral Agent or such Person, all of the Term Loan Commitment (if any), and all of the outstanding Term Loan of that Non-Funding Lender for an amount equal to the aggregate outstanding principal balance of the Term Loan held by such Non-Funding Lender and all accrued interest with respect thereto through the date of sale, such purchase and sale to be consummated pursuant to an executed assignment agreement in form and substance reasonably satisfactory to, and acknowledged by, Collateral Agent.
Consenting Lenders The undersigned Lender hereby irrevocably and unconditionally approves the Amendment and consents to the certain amendments set forth therein. CIFC Funding 2006-II, Ltd. as a Lender (type name of the legal entity) By: CIFC Asset Management LLC, its Collateral Manager By: /s/ Xxxxxxxxx Xxxxx Name: Xxxxxxxxx Xxxxx Title: Authorized Signatory
Financing Commitment For the period commencing on the date hereof and ending on the fifth anniversary hereof, Atlas America and Resource Energy agree to provide to the MLP funding of up to an aggregate of One Million Five Hundred Thousand Dollars ($1,500,000) per annum to finance the cost of expanding the Gathering System or constructing new additions to the Gathering System. Atlas America and Resource Energy, jointly and severally, commit to provide such funding, upon the MLP's written request therefor, by purchasing Common Units at a price equal to the arithmetic average of the closing prices of the Common Units on the American Stock Exchange, or, if the American Stock Exchange is not the principal trading market for such security, on the principal trading market for such security, for the twenty consecutive trading days ending on the trading day prior to the purchase, or, if the fair market value of the Common Units cannot be calculated for such period on any of the foregoing bases, the average fair market value during such period as reasonably determined in good faith by the members of the managing board of the General Partner.
Administrative Agent’s and Lender’s Rights In the case of any event specified in Section 4.4.1 [Unascertainable] above, the Administrative Agent shall promptly so notify the Lenders and the Borrower thereof, and in the case of an event specified in Section 4.4.2 [Illegality; Increased Costs; Deposits Not Available] above, such Lender shall promptly so notify the Administrative Agent and endorse a certificate to such notice as to the specific circumstances of such notice, and the Administrative Agent shall promptly send copies of such notice and certificate to the other Lenders and the Borrower. Upon such date as shall be specified in such notice (which shall not be earlier than the date such notice is given), the obligation of (A) the Lenders, in the case of such notice given by the Administrative Agent, or (B) such Lender, in the case of such notice given by such Lender, to allow the Borrower to select, convert to or renew a LIBOR Rate Option shall be suspended until the Administrative Agent shall have later notified the Borrower, or such Lender shall have later notified the Administrative Agent, of the Administrative Agent’s or such Lender’s, as the case may be, determination that the circumstances giving rise to such previous determination no longer exist. If at any time the Administrative Agent makes a determination under Section 4.
4.1 [Unascertainable] and the Borrower has previously notified the Administrative Agent of its selection of, conversion to or renewal of a LIBOR Rate Option and such Interest Rate Option has not yet gone into effect, such notification shall be deemed to provide for selection of, conversion to or renewal of the Base Rate Option otherwise available with respect to such Loans. If any Lender notifies the Administrative Agent of a determination under Section 4.4.2 [
