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
Samples: Credit Agreement (Cinemark Usa Inc /Tx), Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark 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 AgentsAdministrative 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.
1the 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 2.172.16, 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 2.182.17, 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 participationsuch 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 thereofAgent) shall not be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitmentsa Loan, unless each of the Administrative Agent and $1,000,000the 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 andan 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 Loansthe “Assignor”) shall have Commitments and Loans aggregating at least $5,000,000assignee 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 recordingrecording 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 AssumptionAcceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth thereinunder this Agreement, and (y) the Assignor assigning Lender thereunder shall, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all of an Assignorthe assigning Lender’s rights and obligations under this Agreement, such Assignor Lender shall cease to be a party heretohereto 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 aggregatedthis 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 RegisterRegister (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(c9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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 Notesinterests, 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 Borrowerhereby 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
Samples: Credit Agreement (Nicor Inc), Credit Agreement (Agl Resources Inc), Credit Agreement (Northern Illinois Gas Co /Il/ /New/)
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.
1the 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 AssumptionAcceptance, 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 provisionsan Affiliate thereof, by the Borrower and such other Personsthe 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionAgreement 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 shallAgent, 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 AgreementAgreement 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 Personthe Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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 doubtSubject 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
Samples: 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 ParentHoldings, 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.
1the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaidunpaid 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 2.172.19, 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 2.182.20, 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 AssumptionAcceptance, 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 AgreementAgreement 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 andand (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 Loansbe 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 RegisterRegister (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 AssumptionAcceptance; 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 Xxxxxx Commercial Paper Inc. or to (z) in the case of an Assignee which is already a Barclays EntityLender 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 Notesinterests, 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
Samples: 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 AgentsAdministrative 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.
1the 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 2.172.14, 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 2.182.15, 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 offurther, 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 EAcceptance, 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 provisionsthis 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 thereofLender Affiliate) shall be in an aggregate principal amount of less than $5,000,00010,000,000 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 CommitmentsLoans to be retained by the Assignor, and if any, shall equal at least $1,000,00010,000,000, 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedAssignor.
(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 RegisterRegister (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(c11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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 Notesinterests, 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 amendmentabove.
Appears in 2 contracts
Samples: 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, 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
Samples: 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, 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 BorrowerBorrower 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
Samples: 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 ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.16, 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 2.182.17, 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 Registersuch 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 thereofAgent) 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 assignmentbe 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 Loansii) 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 recordingrecording 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 AssumptionAcceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth thereinunder this Agreement, and (y) the Assignor assigning Lender thereunder shall, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all of an Assignorthe assigning Lender’s rights and obligations under this Agreement, such Assignor Lender shall cease to be a party heretohereto 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 RegisterRegister (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 multiple1,000, 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 Notesinterests, 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 Borrowerhereby 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
Samples: 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 each Borrower, the Lenders, the AgentsLender, 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.
1the 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 2.171.12, 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 Lenderlender; provided PROVIDED that, in the case of Section 2.181.13, such Participant shall have complied with the requirements of said SectionSections 1.12, 1.13 and provided1.14 and PROVIDED, furtherFURTHER, 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 ofFURTHER, 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.
(whichc) 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 caseconnection 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 paragraphpurchase 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 amountsrights 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 aggregatedrequire 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 lawDocuments.
(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 amendmentabove.
Appears in 2 contracts
Samples: 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, 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.
1the 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 DefaultDefault 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 2.172.14, 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 2.182.15, 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 AssumptionAcceptance, 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 PersonsBorrower) 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 timetime 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 RegisterRegister (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 Personthe 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 EntityLender 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 beNote, 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 beNote, 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 Notesinterests, 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
Samples: 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 AgentsAdministrative 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 2.172.10, 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 2.18Sections 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 lawlaw 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 continuingany 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 AssumptionAcceptance, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 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 10.142.16 (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 amountscontrary, neither the Commitments and Loans of Related Funds shall Borrower nor any Affiliate thereof may be aggregatedan “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 erroramounts 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 RegisterRegister (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 AssumptionAcceptance; 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(c9.7(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 EntityLender), 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(g9.7(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 (gSection 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
Samples: 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 AgentsAdministrative 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.
1the 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 2.172.13, 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 2.182.14, 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 EAcceptance, 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 provisionsthis 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 RegisterRegister (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 multiple3,500, 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 Notesinterests, 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 amendmentabove.
Appears in 2 contracts
Samples: 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, 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.
1the 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 2.174.9, 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 AssumptionAcceptance, 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 RegisterRegister (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 $1,000,0001,000,000 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 Loansany 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 Facilitiesunreasonably withheld). Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 shallAgent, 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 AgreementAgreement 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 multiple3,000, 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 Notesinterests, 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
Samples: 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, 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.
1the 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 DefaultDefault 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 AssumptionAcceptance, 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 PersonsBorrower) 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 $5,000,000that, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 heretohereto except for the obligations of the Borrower under Section 9.5, except as which shall survive such assignment). Subject to Sections 2.172.18(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 SectionSection 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 timetime 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 RegisterRegister (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 Personthe 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 EntityLender 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 NotesNote, 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 Notesinterests, 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
Samples: 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 AgentsAdministrative 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 Lendervoid.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowerBorrower 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.
18.1 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 2.172.12, 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 2.182.13, such Participant shall have complied with the requirements of said SectionSection 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 (iiIneligible 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 EAcceptance, 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 provisionsthis 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 thereofLender 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 aggregatedSection 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 LoanLoan or Participation, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the RegisterRegister (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(c8.6(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 EntitySection 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 NotesLender, 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 lawBank; 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 Borrowerhereby 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
Samples: 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 AgentsAdministrative 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.
1the 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 2.172.15, 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 2.182. 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 EAcceptance, 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 provisionsthis 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 thereofApproved 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 assignmentAgent. 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 continuingcontinuing 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 aggregatedSection 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 RegisterRegister (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 multiple4,000, 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 Notesinterests, 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 Borrowerhereby 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
Samples: 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 ParentBorrower, the BorrowerGuarantor, the Lenders, the AgentsIssuing 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.
1the 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 2.172.6, 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 2.183.9, 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 Registersuch 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 thereofi) 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 Commitmentsoutstanding 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 $1,000,000such 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 executionAssignee, delivery, (ii) acceptance and recordingrecording 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 AssumptionAcceptance, (x) the such Assignee thereunder shall be a party hereto and, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth thereinunder this Agreement, and (y) the Assignor assigning Lender thereunder shall, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all of an Assignorthe 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 Assigneebenefits of Sections 2,6, 2.7, 3.9 and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled12.” 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
Samples: 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 AgentsAdministrative 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.
1the 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 2.172.18, 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 2.182.19, 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 Personthe Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple4,000, 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 datedate 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 NotesLoan 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 Notesinterests, 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
Samples: 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 ParentCompany, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.18, 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 2.182.19, 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 AssumptionAcceptance, 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 provisionsan affiliate or Approved Fund thereof, by the Borrower and such other Personsthe 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 LoanLender, 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 Registerform 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 LoanObligation(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 Notesinterests, 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
Samples: 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 AgentsAdministrative 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.
1the 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 thatthat 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 2.182.17, 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 shallExcept 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 EAcceptance, 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 provisionsthis 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 thereofLender Affiliate) shall be in an aggregate principal amount of less than $5,000,0001,000,000), 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 continuingcontinuing 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 aggregatedSection 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 RegisterRegister (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 multiple2,500, 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 Notesinterests, 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 hereinAny 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 extentAdministrative 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 ifreorganization, 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
Samples: 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 lawlaw 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 AssumptionAcceptance, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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
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 AgentsAdministrative 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.
1the 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentREIT, 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 2.172.14, 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 2.182.15, 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 lawlaw 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 withheldLxxxxx 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 AssumptionAcceptance, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.14, 2.18 2.15 and 10.5 11.5 in respect of the period prior to such effective date and Section 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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(c11.6(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.Lxxxxx Entity or
Appears in 1 contract
Samples: 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 ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.16, 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 2.182.17, 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 contraryvalidity 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 EAcceptance, 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 provisionsthis 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 thereofLender 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 RegisterRegister (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 multiple1,000, 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 Borrowereffective 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 Notesinterests, 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 Borrowerhereby 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
Samples: 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, 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 lawlaw 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 AssumptionAcceptance, 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 assignmentthereto, 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 LoansRevolving 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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(cclause (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 EntityLehman Entity or (z) in the case of an Assignee which is already a Lxxxxx 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowerBorrowers, 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 BorrowerBorrowers, 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 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 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 SectionSection (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 lawlaw 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 continuingany 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 any Xxxxxx Entity and (y) the consent of the Borrowers 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 AssumptionAcceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the BorrowerBorrowers, 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 thereofFund) 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 assignmentthereto, 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 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 in respect of the period prior to such effective date and Section 10.14date). 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 BorrowerBorrowers, 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 BorrowerBorrowers, 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 RegisterRegister (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 AssumptionAcceptance; 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 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 EntityXxxxxx Entity or (y) 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 BorrowerBorrowers. On or prior to such effective date, the BorrowerBorrowers, 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 BorrowerBorrowers, 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 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
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 Agents 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 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 interest of such Lender in any Letter of Credit, 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 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 other Loan Document except for those specified in clauses (a) and (b) of the proviso 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 10subsection 11.
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 subsection 11.8
(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 2.17subsections 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 2.18subsection 4.10, such Participant shall have complied with the requirements of said Section, subsection and provided, further, that no the aggregate amounts payable to a Participant shall be entitled to receive any greater amount and the transferor Lender pursuant to any such Section than subsection shall not exceed the amounts 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 promptly 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, notify the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining writing of the sale of any participating interest in a Participant RegisterLoan to any Participant.
(c) Any Lender (an “Assignor”) may, in the ordinary course of its business of making or investing in loans 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 and, if no Default or Event of Default has occurred and then is continuing, except as expressly provided herein, 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 that is then engaged in the business of lending money or for the purposes of the Term Loans, engaged in the business of investing in loans (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and AssumptionAcceptance, substantially in the form of Exhibit EA, executed by such Assignee and 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 provisionsan affiliate thereof, by the Borrower and such other Personsthe Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; , with a copy thereof to the Borrower, provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereofa) shall be in an aggregate principal amount of less than $5,000,000, in the case of any such assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of to a Lender or an assignment of all Affiliate of a Lender’s interests under this Agreement), unless otherwise the sum of the aggregate principal amount of the Loans, the aggregate amount of the L/C Obligations and the aggregate amount of the unused Commitments being assigned and, if such assignment is of less than all of the rights and obligations of the assigning Lender, the sum of the aggregate principal amount of the Loans, the aggregate amount of the L/C Obligations and the aggregate amount of the unused Commitments remaining with the assigning Lender are each not less than $10,000,000 (or such lesser amount as may be agreed to by the Borrower and the Administrative Agent andAgent), after giving effect (b) assignments shall not be required to such assignmentbe made on a ratable basis between the Commitments and/or Loans held by any Lender, the assigning (c) assignments by a Revolving Credit Lender (if it shall retain any of all or a portion of its Revolving Loans and/or Revolving Credit Commitment must be to either (i) a commercial bank having total assets in excess of $5,000,000,000 or Loansany of its Affiliates, or (ii) shall have Commitments a finance company, insurance company or other financial institution or fund which is regularly engaged in the making of, purchasing or investing in loans and having total assets in excess of $300,000,000 ("Eligible Assignee"), (d) any Lender may make an assignment consisting solely of Term Loans aggregating (without regard to the requirements of clause (a) above) so long as the aggregate principal amount of Term Loans so assigned (if less than the Assignor's entire interest) is at least $5,000,000, (e) the consent of the Borrower shall be required in connection with any assignment to a Lender or an Affiliate of a Lender solely to the case extent that after giving effect thereto such Lender or Affiliate would be entitled to receive any greater payment under subsection 4.9, 4.10 or 4.11 at such time than the assigning Lender is entitled to receive at such time, (f) the consent of Revolving Credit Commitmentsthe Administrative Agent and the Borrower shall not be required in connection with any bulk assignment by a Lender of its entire loan portfolio (including its rights and obligations under this Agreement and the other Loan Documents) to an Eligible Assignee, and (g) the Administrative Agent shall at all times hold at least (i) $1,000,000, in the case 30,000,000 of the Term Loans. Any such assignment need not be ratable as among Commitments minus (ii) its Commitment Percentage of any reductions of the FacilitiesCommitments applicable to all Lenders. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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, 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 shallAgent, on behalf of the Borrower, shall maintain at its the address of the Administrative Agent referred to in Section 10.2 subsection 11.2 a copy of each Assignment and Assumption Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders 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 AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any Loan, whether Loan or not evidenced by a Note, other obligation hereunder shall be effective only upon appropriate entries with respect thereto being made in the 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 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 Personthe Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,000, 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; provided, at its own expensehowever, upon request, that no such registration and processing fee shall execute and deliver to be paid in connection with the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, initial syndication 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) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee, subject to the provisions of subsection 11.16, any and all financial information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement.
(g) 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 subsection 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 Regulation A of the Board of Governors or other applicable lawlaw or the creation of a security interest by any Lender other than a commercial bank.
(gh) Notwithstanding anything So long as no Default or Event of Default shall have then occurred and be continuing, no assignment by a Lender pursuant to this subsection 11.6 shall be permitted without 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 consent of 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)giving effect thereto, any SPC may (A) with notice to, but without the prior written consent of, the Borrower and Lender other than the Administrative Agent and without paying any processing fee therefor, assign all or a portion would hold in excess of its interests in any Loans to the Granting Lender, or with the prior written consent 20% of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to aggregate Voting Percentages at 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 amendmenttime.
Appears in 1 contract
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”"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.
1the 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 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 it was a Lender; provided PROVIDED that, in the case of Section 2.18, such Participant shall have complied with the requirements of said SectionSection and PROVIDED, and provided, furtherFURTHER, 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 Borrower shall not be required to the extent such entitlement to receive pay 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 Registeramount.
(c) Any Lender (an “"Assignor”") may, in accordance with applicable lawlaw and with written notice to the Syndication Agent, at any time and from time to time assign to any Lender or any Affiliate thereof or Related Fund thereof a Person under common management with such Lender 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”"ASSIGNEE") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and AssumptionAcceptance (an "ASSIGNMENT AND ACCEPTANCE"), substantially in the form of Exhibit E, executed by such Assignee Assignee, such Assignor, the Syndication Agent and such Assignor 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 PersonsBorrower) 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 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 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, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 10.6, 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”"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 timetime 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 RegisterRegister (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 Personthe Borrower, the Administrative Agent, the Syndication Agent 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) 2,000 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Union Bank of California, N.A. or to (z) in the case of an Assignee which is already a Barclays EntityLender 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, 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 Notesinterests, 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
Samples: Credit Agreement (Axiohm Transaction Solutions Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the Agents, 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 and each Lender.
(b) Any Lender may, without the consent of Holdings or 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 1015.
1. The Each of Holdings and the Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaidunpaid after 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 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 2.177.11, 2.18 7.12 and 2.19 7.13 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a LenderLender if and to the extent the transferor Lender waives its rights to such amounts; provided that, in the case of Section 2.187.11, 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 lawlaw and upon written notice to the General Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Control Investment Affiliate thereof 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 AssumptionAcceptance, substantially in the form of Exhibit EI, 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 General 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 U.S. $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 General 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 FacilitiesTerm Loans. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or the Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and AssumptionAcceptance, 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 2.177.11, 2.18 7.13 and 10.5 15.5 in respect of the period prior to such effective date and Section 10.14date). 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 General Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 15.2 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 RegisterRegister (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 AssumptionAcceptance; 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 General Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower Credit Parties 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(cSection15.6(c), by each such other Person) together with payment to the General 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 Xxxxxx Entity or (z) in the case of an Assignee which is already a Barclays EntityLender or is an affiliate 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 General Administrative Agent shall (i) promptly accept such Assignment and Assumption Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders, the Agents and the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the General Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, or Notes of the assigning Lender) a new Revolving Credit applicable 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, 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 LoansLoan, as the case may be, upon request, a new Revolving Credit Note and/or Term or Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or amount of the applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Second 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 Notesinterests, 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
Samples: Credit Agreement (SMTC 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 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 lawlaw -------- and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender Lender, any affiliate thereof or any Affiliate 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 and, in the case of Default has occurred and is continuingany Assignment of the Revolving Credit Commitments, the Borrower written consent of each then 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, 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 AssumptionAcceptance, 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 then 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 a 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 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 10.14date). 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 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 Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes 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 RegisterRegister (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 AssumptionAcceptance; 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 in connection the case of (i) an Assignee which is already a Lender or is an affiliate of a Lender, a Related Fund of a Lender or a Person under common management with a Lender and (ii) an assignment by or to a Barclays EntityAssignee of the Arranger), 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 Agents 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 or its registered assigns in an amount equal to the Revolving Credit Commitment and/or, prior to the Delayed Draw Termination Date, the Available Delayed Draw Term Loan 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, prior to the Delayed Draw Termination Date, any Available Delayed Draw Term Loan Commitment, and/or applicable 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 prior to the Delayed Draw Termination Date, the Available Delayed Draw Term Loan Commitment, and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date effective date of the applicable Assignment and Acceptance 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 Notesinterests, 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 . Any Lender (that is a “Granting Lender”) fund that invests in bank loans 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 pledge 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 rights in any Loans connection with this Agreement to the Granting Lendertrustee for holders of obligations owed, or with the prior written consent securities issued, by such fund as security for such obligations or securities, provided, that any foreclosure or other exercise of the Borrower and the Administrative Agent (which consent remedies by such trustee 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 subject to the Borrower may be disclosed only with provisions of this Section 10.6 regarding assignment in all respects. No pledge described in 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 immediately preceding clause shall release such proposed amendmentLender from its obligations hereunder.
Appears in 1 contract
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 AgentsAdministrative 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.
1the 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 2.172.18, 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 2.182.19, 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 EAcceptance, 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 provisionsthis 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 thereofApproved 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 assignmentAgent. 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 continuingcontinuing 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 aggregatedSection 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 RegisterRegister (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 multipleor, 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 Entityits 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 Notesinterests, 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 Borrowerhereby 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
Samples: Credit Agreement (Inamed Corp)
Successors and Assigns; Participations and Assignments. (a) This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
(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 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.
1the 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 61 entitled to the benefits of Sections 2.172.18, 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 2.182.19, 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.
(cb) 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 AssumptionAcceptance, substantially in the form of Exhibit EC, 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 provisionsthis 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 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 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, 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”") 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 RegisterRegister (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.
(ed) 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(c11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple4,000, 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.
(fe) 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 Notesinterests, 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.
(gf) 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 amendmentabove.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 lawlaw (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 thatprovided, 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 2.174.9, 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 thatprovided, that in the case of Section 2.184.10, 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 EAcceptance, 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 provisionsthis 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 thereofApproved 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 andAgent, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or LoansB) shall have Commitments and Loans aggregating at least $5,000,000, in the case of any assignment of Revolving Credit CommitmentsCommitments (other than to a Lender or an Affiliate of a Lender), the consent of Borrower the Issuing Lender and $1,000,000the 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 Loanseach 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedSection 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 RegisterRegister (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(c11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multipleany 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 Notesinterests, 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 Borrowerhereby 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
Samples: Credit Agreement (Jondex Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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
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 assignsassigns permitted hereby, except that the (i) no Borrower may not assign or otherwise transfer any of its rights or obligations under this Agreement hereunder without the prior written consent of the Agents Lender (and each Lenderany attempted assignment or transfer by any Borrower without such consent shall be null and void) and (ii) the Lender may not assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section.
(bi) Any Subject to the conditions set forth in paragraph (b)(ii) below, the Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell may assign to one or more banksEligible Assignees, 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 upon 10 days prior written notice to the other parties Borrowers (unless 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 an Eligible Assignee described 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 clause (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(ca) 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 Borrowerdefinition thereof), 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 to an Assignment and Assumption, substantially in the form (including all or a portion 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 Commitment and the Administrative Agent and, after giving effect Loans at the time owing to such assignment, the assigning Lender it).
(if it shall retain any Revolving Credit Commitment or Loansii) 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 From and after the effective date determined pursuant to such specified in each Assignment and Assumption, (x) Acceptance the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth thereinunder this Agreement, and (y) the Assignor thereunder assigning Lender shall, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all of an Assignorsuch 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 be entitled to the benefits of the period prior to such effective date and Section 10.149.5). Notwithstanding any provision Any assignment or transfer by a Lender of rights or obligations under this Section, the consent of the Borrower shall Agreement that does 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 comply with this paragraph, multiple assignments to or by two or more Related Funds Section 9.6 shall be aggregated and treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations.
(c) The Borrowers, upon receipt of written notice from any Lender, agree to issue a Note to any Eligible Assignee requiring a Note to facilitate transactions of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedtype described in paragraph (b) above.
(d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred Lender may participate 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 Person(s), upon 10 days prior written notice to the designated AssigneeBorrowers, 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 rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it), provided that (i) the Lender’s obligations under this Agreement shall remain unchanged, (ii) the Lender shall remain solely responsible to the Granting Lender, or other parties hereto for the performance of such obligations and (iii) the Borrowers shall continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations under this Agreement. The prior written consent of the Borrowers (not to be unreasonably withheld or delayed) shall be required for any participation in respect of any unfunded commitment in which the Lender transfers any voting rights to such participant.
(e) Each of the Borrowers hereby covenants and agrees that, at any time after the Closing Date at the request of any Lender, each Borrower shall promptly execute and deliver any amendment or other modification to this Agreement or any other Loan Documents (each an “Assignment Amendment”), in each case, as necessary or appropriate in the Administrative Agent opinion of such Lender, to incorporate such additional provisions to allow, or otherwise provide, for any assignment or participation of the Loans (which consent including, without limitation, amendments providing for the appointment of an administrative agent, voting rights amongst the Lenders, participations, tax gross-up, increased costs indemnity or any other lender indemnities or other customary lender protections), provided that such Assignment Amendment 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, contain terms 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 conditions more adverse to the Borrower may be disclosed only with Loan Parties than the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without terms and conditions set forth in the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentSix Flags First Lien Credit Agreement.
Appears in 1 contract
Samples: Multiple Draw Term Credit Agreement (Six Flags Entertainment Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, 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 2.172.19, 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 2.182.20, 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 lawlaw 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 continuingany 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 Xxxxxx 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 AssumptionAcceptance, 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 CommitmentsFacility, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.19, 2.18 2.20 and 10.5 in respect of the period prior to such effective date and Section 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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 EntityXxxxxx 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 NotesNote, as the case may beapplicable, 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentREIT, 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 2.172.16, 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 2.182.17, 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, 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, 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 reduce the consent principal of, or interest on, the Loans or any fees payable hereunder, release all or substantially of all Lenders pursuant the Collateral or the Guarantors from their obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Loans, in each case to Section 10.
1the 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 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 lawlaw -------- and upon written notice to the Administrative Agent, at any time and from time to time assign (i) to any Lender or any Affiliate or Related Fund Control Investment Affiliate thereof orwith, in the case of assignments of Revolving Credit Commitments only, the consent of the Issuing Bank (which consent shall not be unreasonably withheld or delayed) or (ii) with the consent of (i) the Borrower, the Administrative Agent and so long as no Default or Event (with respect to assignments of Default has occurred and is continuing, Revolving Credit Commitments only) 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 Xxxxxx Commercial Paper Inc., Barclays Bank PLC or any of their respective Affiliates (other than, in the case of assignments of Revolving Credit Commitments, the consent of the Issuing Bank, which consent shall not be unreasonably withheld or delayed), 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 AssumptionAcceptance, 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 Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in with respect to the case of any assignment of Revolving Credit CommitmentsFacility, and $1,000,000, in with respect to the case of any assignment of Term Loans Loan Facility or the Optional Term Loan 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 andAgent; provided further -------- ------- that, after giving effect to such assignment, the assigning Lender (if it aggregate principal amount of such Assignor's Commitment shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating be at least $5,000,000, in with respect to the case of Revolving Credit CommitmentsFacility, and $1,000,000, with respect to the Term Loan Facility or the Optional Term Loan Facility (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Term LoansBorrower 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 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 RegisterRegister (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 AssumptionAcceptance; 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) or Agent 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 Xxxxxx Commercial Paper Inc. or any of its Affiliates or (z) in the case of an Assignee which is already a Barclays EntityLender 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, the Agents 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 applicable Note and/or applicable Term Notes, as the case may be, or Notes of the assigning Lender) a new Revolving Credit applicable 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 LoansLoan, 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 LoansLoan, as the case may be, upon request, a new Revolving Credit applicable Note and/or Term or 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 LoansLoan, 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 Notesinterests, 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
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 Agents and their respective successors and assigns, except that that, other than as expressly provided for herein, the Borrower may shall not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (and any purported such assignment or transfer by the Agents Borrower without such consent of each Lender shall be null and each Lendervoid).
(b) Any Lender may, without the consent of the Borrower, in accordance with applicable lawLaw, at any time sell to one or more banks, financial institutions or other entities (each, a “ParticipantParticipants”) participating interests in any Loan or Reimbursement Obligation owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan DocumentsDocuments (a “Participation”) without the consent of any party hereto, provided, that the proposed Participant shall provide a tax form in accordance with Section 4.14(f) (if applicable) establishing (or otherwise establish to the Borrower’s satisfaction) a rate of U.S. withholding tax with respect to all payments received or to be received by the proposed Participant under each of the Loan Documents as of the date of the proposed Participation not in excess of the rate of U.S. withholding tax imposed upon the selling Lender as of the date of the proposed Participation. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender shall deliver the information provided for in the last sentence of Section 11.6(d), 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 Loan, Reimbursement Obligation, Commitment or other interest 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 to 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 its consent or approval is required to be obtained by a Lender under the applicable participation agreement with such Participant for any such amendment, waiver or consent that would require reduce the consent principal of, or the stated rate or amount of all Lenders pursuant interest on, the Loans, Reimbursement Obligation 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.
1the 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 lawLaw, 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 thatprovided, 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 of, and bound by the obligations imposed on the Lenders in, Sections 2.174.13, 2.18 4.14, and 2.19 4.15 with respect to its participation in the Commitments and the Loans and other Extensions of Credit outstanding from time to time as if such Participant it were a Lender; provided thatprovided, that in the case of Section 2.184.14, 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 lawLaw, at any time and from time to time assign to any Person, (x) in the case of such Person that is not a Lender or any an Affiliate or Related Fund thereof orof a Lender, with the consent of the Administrative Agent, each Issuing Lender, the Swing Line Lender and, so long as no Default or Event of Default has occurred and is continuing, the Borrower, and (iy) in the case of such Person that is a Lender or an Affiliate of a Lender, with the consent of the Administrative Agent, each Issuing Lender and the Swing Line Lender (such assignee, an “Assignee”), all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, substantially in the form of Exhibit F, appropriately completed (an “Assignment and Acceptance”), executed by such Assignee, such assigning Lender, each Issuing Lender, the Administrative Agent and Swing Line Lender (and, in the case of an assignment to a Person that is not already a Lender, so long as no Default or Event of Default has occurred and is continuing, the Borrower) and attaching the Assignee’s relevant tax forms, administrative details and wiring instructions, and delivered to the Administrative Agent for its acceptance and recording in the Register; provided, that the consent of the Borrower (if necessary) shall not be unreasonably withheld, conditioned or delayed; provided, further, that it shall be deemed reasonable for the Borrower to withhold, condition, or delay such consent to an Assignment and Acceptance if the proposed Assignee does not provide a tax form in accordance with Section 4.14(f) establishing (or otherwise establish to the Borrower’s satisfaction) a rate of U.S. withholding tax with respect to all payments received or to be received by the proposed Assignee under each of the Loan Documents as of the date of the proposed Assignment not in excess of the rate of U.S. withholding tax imposed upon the assigning Lender as of the date of the proposed Assignment; provided, further, that (i) each such assignment to an Assignee (other than any Lender) shall be in an aggregate principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof (other than in the case of (a) an assignment of all of a Lender’s interests under this Agreement or (b) an assignment by a Lender to its Affiliate), unless otherwise agreed by the Administrative Agent and, so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, such amount to be aggregated in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to of assignments 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 Lender and the consent of the BorrowerAffiliates thereof), and (ii) in if applicable, each Assignee shall comply with the case provisions of any assignment of the Revolving Credit Commitments, the Issuing Lenders Section 4.14(f) (which consent and such Assignee shall not be unreasonably withheldentitled to the benefits of Section 4.14 unless such Assignee complies with such Section 4.14(f), 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 Agreementif applicable), 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 Assignorassigning 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 Any assignment or transfer by a Lender of rights or obligations under this Section, the consent of the Borrower shall Agreement that does 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 comply with this paragraph, multiple assignments to or by two or more Related Funds Section 11.6 shall be aggregated and 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 of Related Funds shall be aggregatedobligations in accordance with Section 11.6(b).
(d) The Pursuant to Section 4.6(c), the Administrative Agent shallAgent, 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 record of each Participation and a register (the “Register”) for the recordation of the names and addresses of the Lenders (including all Assignees, successors and Participants) and the Commitment ofof each Lender; the amount of each Loan made by it hereunder, any Note evidencing such Loan, the maturity date thereof and the Interest Period, if any, applicable thereto and the Type thereof; such Lender’s participation in each Credit issued hereunder and the expiration thereof, and principal the Type of such Loan or Credit; the amount of any principal or interest due and payable or to become due and payable from the Loans owing to, each Borrower to such Lender hereunder; and such Lender’s share of the amount of any sum received by the Administrative Agent hereunder from time to timethe Borrower. 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 AgreementAgreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any LoanLoan 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. If any Lender sells a Participation as described in Section 11.6(b), it shall provide to the Administrative Agent on behalf of the Borrower, or maintain as agent of the Borrower, the information described in this paragraph and permit the Borrower to review such information as reasonably needed for the Borrower to comply with its obligations under this Agreement or under any applicable Law or governmental regulation or procedure.
(e) Upon its receipt of an Assignment and Assumption Acceptance executed by an Assignor assigning Lender, the applicable Assignee, each Issuing Lender, the Swing Line Lender, and an Assignee (the Administrative Agent and, in any case where if required hereunder, the consent of any other Person is required by Section 10.6(c)Borrower, by each such other Person) together with payment to the Administrative Agent by the assigning Lender of a registration and processing fee of $3,500 (treating multiple3,500, 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, 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) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a “Transferee”) and any prospective Transferee any and all financial information in such Lender’s possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender’s credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement, provided, that such Participant, Assignee or prospective Transferee shall have agreed in writing to be bound by the provisions of Section 11.6.
(g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.6 concerning assignments of Loans Loans, Reimbursement Obligations and other Extensions of Credit and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notesinterests, including, without limitation, (i) any pledge or assignment by a Lender of any Loan Loan, Note or Note Reimbursement Obligation 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 (ii) if an SPC elects not any pledge or assignment by a Lender which is a fund to exercise such option or otherwise fails to provide all or any part its trustee for the benefit of such Loantrustee and/or its investors to secure its obligations under any indenture or Governing Documents to which it is a party, the Granting Lender shall be obligated to make provided, that no such Loan pursuant to the terms hereof. The making pledge or assignment of a Loan by an SPC hereunder security interest shall utilize the Commitment of the Granting release a 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 from 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, such pledgee 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 assignee for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on Lender as 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 amendmentparty hereto.
Appears in 1 contract
Samples: Credit Agreement (Green Plains Renewable Energy, 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 AgentsAdministrative 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 BorrowerBorrower 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 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.
1the 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 2.172.18, 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 2.182.19, 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 EAcceptance, 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 provisionsthis paragraph, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that provided, 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 thereofLender Affiliate) shall be in an aggregate principal amount of less than $5,000,0005,000,000 (or, in the case of any assignment of Revolving Credit Commitmentsthe Tranche B Term Facility, and $1,000,000), in the each case of any assignment of Term Loans (other than except in the case of an assignment of all of a Lender’s interests under this Agreement); provided further, unless otherwise agreed by that no US$ Revolving Commitment may be assigned without the Borrower and consent of the Administrative Agent and, after giving effect to such assignmentIssuing Lender. For purposes of the first proviso contained in the 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedSection 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 RegisterRegister (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 multiple3,500, 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 Notesinterests, 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 Borrowerhereby 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
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 AgentsAdministrative 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.
1the 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 2.172.12, 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 2.18Sections 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 EAcceptance, 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 provisionsthis paragraph, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the RegisterRegister (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 thereofLender 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 andits 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 Facilitiespursuant to Section 2.16. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedSection 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 RegisterRegister (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(c9.06(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple4,000, 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 Notesinterests, 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 Borrowerhereby 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
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, in the ordinary course of its business, 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 other Lenders 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 or other amounts payable hereunder, in each case to the extent subject to such participating interest, or postpone any date fixed for any payment of all Lenders pursuant principal of, or interest on, the Loans or any fees or other amounts payable hereunder, in each case to Section 10.
1the extent subject to such participating interest. 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 and subject to the obligations of Sections 2.17, 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 LenderLender or Assignee under Section 10.6(c); provided that, in the case of Section 2.182.16, such Participant shall have complied with the requirements of said Section, ; and provided, further, that (A) such Participant agrees to be subject to the provisions of Section 2.19 and 2.20 as if it were an Assignee under Section 10.6(c) and(B) 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)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.1035f103-1(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 lawlaw and upon written notice to the other Lenders, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof of a Lender 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) and upon written notice to the other Lenders (provided that no such consent from the applicable parties 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, U.S. Bank Entity 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 capacity as Assignor), 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 AssumptionAcceptance, 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 Borrower is required pursuant to the foregoing provisions, by the Borrower and such other PersonsBorrower) and delivered to the Administrative Agent other Lenders for its their acceptance and recording in the Register; provided that, for the avoidance of doubt, U.S. Bank may, without the consent of, or notice to, the Borrower or any other Person, assign its rights and obligations under this Agreement to any other registered broker-dealer wholly-owned by any U.S. Bank Entity to which all or substantially all of U.S. Bank’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement; provided further that with respect to assignments of Loans, 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, 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, such Assignor shall have Loans aggregating at least $5,000,000 (if holding any), 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 Facilitiesother Lenders. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.15, 2.18 2.16 and 10.5 in respect of the period prior to such effective date and Section 10.14date). 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 and minimum 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) No such assignment shall be made (i) to 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).
(e) No such assignment shall be made to a natural Person.
(f) 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 other Lenders in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the other Lenders, 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 any other Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(g) The Administrative Agent Lenders 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 them 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 Borrower 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 Register (and each 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.” expressly so provide). The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such LenderXxxxxx’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 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 Lenders 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 The Borrower, at its own expense, promptly upon requestreceipt of a request by an Assignee, shall execute and deliver to the Administrative Agent such Assignee (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, 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 beLoan, 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, Loan retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date effective date of the relevant assignment 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) 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.
(gj) 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 other Lenders 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 thereforBorrower, 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.
Appears in 1 contract
Samples: Term Loan Credit Agreement (NorthWestern Energy Group, 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 AgentsAdministrative 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 requires the consent approval of all Lenders the Lender from which the Participant purchased its Participation pursuant to clauses (i) through (v) of 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 2.172.12, 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 were it was a Lender; provided that, in the case of Section 2.182.13, 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 (i) with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed), to any Lender, any affiliate of any Lender or any Affiliate Approved Fund or Related Fund thereof 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 EAcceptance, 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 provisionsthis 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 thereofApproved 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 interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignmentAgent. 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 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 aggregatedSection 9.6(c).
(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 RegisterRegister (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(c9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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 Notesinterests, 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 Borrowerhereby 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the US Borrower, the Cayman Borrower, the Lenders, the Arrangers, the Agents, all future holders of the Loans and their respective successors and assigns, except that none of Holdings, the US Borrower or the Cayman Borrower may not assign or transfer any of its their respective rights or obligations under this Agreement without the prior written consent of the Arrangers, the Agents and each Lender.
(b) Any Lender may, without the consent of the US Borrower, the Cayman Borrower, the Administrative Agent or any other Person, 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 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 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 Borrower and each Lender Borrowers also agree that each Participant shall be entitled to the benefits of Sections 2.172.19, 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 2.182.20, such Participant shall have complied with the requirements of said SectionSection and Section 9.12, 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 lawlaw 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 any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor by the Administrative Agent 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 who regularly are engaged in extending or purchasing commercial loans (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and AssumptionAcceptance, 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 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), unless otherwise agreed by the applicable Borrower and the Administrative Agent and(except during the continuance of an Event of Default, after giving effect to such assignment, the assigning Lender (if it no consent of either Borrower 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 Loansbe required). 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.19, 2.18 2.20, 2.21, 9.12 and 10.5 in respect of the period prior to such effective date and Section 10.14date). 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 BorrowerBorrowers, 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 US Borrower, the Cayman 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 RegisterRegister (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 AssumptionAcceptance; 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 US Borrower or the Cayman Borrower, as applicable, marked “canceled.” ”. The Register shall be available for inspection by the either 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 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 EntityLender), 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 US Borrower or the Cayman Borrower, as applicable. On or prior to such effective date, the applicable Borrower, 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, 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 the 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, applicable Borrower the option to provide to the such Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the such 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 applicable 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 applicable 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 applicable Borrower may be disclosed only with the such 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.14, 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 2.182.15, 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 Registersuch 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 thereofAgent) shall not be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitmentsa Loan, unless each of the Administrative Agent and $1,000,000the 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 andan 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 Loansii) 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 recordingrecording 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 AssumptionAcceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth thereinunder this Agreement, and (y) the Assignor assigning Lender thereunder shall, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all of an Assignorthe assigning Lender’s rights and obligations under this Agreement, such Assignor Lender shall cease to be a party heretohereto 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 RegisterRegister (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 multiple3,500, 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 Notesinterests, 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 Borrowerhereby 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
Samples: 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 ParentHoldings, 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 BorrowerBorrower 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 2.172.19, 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 2.182.20, 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 lawlaw 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 continuingany 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 CommitmentsLoans, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.19, 2.18 2.20 and 10.5 in respect of the period prior to such effective date and Section 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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 EntityXxxxxx 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, 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.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 2.172.14, 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 2.182.15, 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 lawlaw 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 continuingBorrower, 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 xxxxxx (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.14, 2.18 2.15 and 10.5 in respect of the period prior to such effective date and Section 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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 EntityLehman Entity or (z) in the case of an Assignee which is already a Lenxxx xx 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
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 AgentsAdministrative 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 (other than any Disqualified Entity) (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, release all or substantially all of all Lenders pursuant the Collateral or the Subsidiary Guarantors from their obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Loans, in each case to Section 10.
1the 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, 2.18 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 lawlaw 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 orwith, 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 (whichand, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect case of an assignment to any assignment of Term LoansDisqualified Party, 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 a 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 AssumptionAcceptance, substantially in the form of Exhibit ED, 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 Personsthe 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 Lender, Related Fund or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,0002,000,000, in with respect to the case of any assignment of Revolving Credit CommitmentsFacility, and $1,000,000, in with respect to the case of any assignment of Term Loans Loan 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 andAgent; provided further that, after giving effect to such assignment, the assigning Lender (if it aggregate principal amount of such Assignor's Commitment shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating be at least $5,000,0002,000,000, in with respect to the case of Revolving Credit CommitmentsFacility, and $1,000,000, with respect to the Term Loan Facility (other than in the case of an assignment to a Related Fund or of all of a Lender's interests under this Agreement), unless otherwise agreed by the Term LoansBorrower 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 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 RegisterRegister (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 AssumptionAcceptance; 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) or Agent 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(c9.6(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 General Electric Capital Corporation or any of its Affiliates or (z) in the case of an Assignee which is already a Barclays EntityLender 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, 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 applicable Note and/or applicable Term Notes, as the case may be, or Notes of the assigning Lender) a new Revolving Credit applicable 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 LoansLoan, 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 LoansLoan, as the case may be, upon request, a new Revolving Credit applicable Note and/or Term or 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 LoansLoan, 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 Notesinterests, 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, 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 BorrowerBorrower 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.
1the 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 2.172.16, 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 2.182.17, 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 EAcceptance, 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 provisionsthis 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 $5,000,000that, 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 andAgent; 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 Commitmentsan 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 $1,000,000250,000 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 Loanspreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedSection 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 RegisterRegister (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 noticerequest.
(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 Entitymore 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 Notesinterests, 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 lawlaw 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 hereinBorrower, 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 Borrowerhereby 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
Samples: 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, the Lenders, the AgentsAgent, all future holders of the Loans Notes 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 banksany financially sound bank, financial institutions insurance company or other entities similar financial institution (each, a “Participant”"NONVOTING PARTICIPANTS") participating interests in any portion of (i) with respect to a Lender not a Voting Participant, any Loan or Reimbursement Obligation 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 such Lender's Notes or any other Loan DocumentsDocuments and (ii) with respect to a Voting Participant, its participating interest under the Participation Agreement, any Commitment of such Voting Participant or any other interest of such Voting Participant hereunder or under any other Loan Documents PROVIDED, that a participant of a Voting Participant may not become a Voting Participant without the written consent of Chase, PROVIDED, FURTHER that with respect to clauses (i) and (ii) (y) such Lender shall simultaneously sell, and such Nonvoting Participant shall purchase, a participating interest in a similar percentage of such Lender=s Existing Senior Obligations and (z) the aggregate principal amount of the portion of the Loans or Reimbursement Obligations or the aggregate amount of the Commitments, as the case may be, in which any such participating interest is sold shall not be less than US$1,000,000. In the event of any such sale by a Lender of a participating interest to a Nonvoting Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement (and its Participation Agreement, if applicable) 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 Borrower, the Agents Agent and, if applicable, Chase as a party to the Participation Agreement shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and, if applicable, the Participation Agreement and the other Loan Documents. In no event No Lender shall be entitled to create in favor of any Participant under any Nonvoting Participant, in the agreement pursuant to which such participation have Nonvoting 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 other Loan Document except for those specified in clauses (i) and (ii) of the proviso 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 subsection 10.
1. 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 Nonvoting Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement and any Note to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this AgreementAgreement or any Note, provided PROVIDED that, in purchasing such participating interest, such Nonvoting Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as subsection 10.8
(a) as fully as if such Participant it were a Lender hereunder. The Borrower and each Lender also agree agrees that each Nonvoting Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 subsection 2.11 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, in the case of Section 2.18, PROVIDED that such Nonvoting Participant shall have complied with the requirements of said Sectionsubsection and PROVIDED, and provided, furtherFURTHER, that no Nonvoting 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 Nonvoting 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 any financially sound bank, insurance company or other similar financial institution or other entity that satisfies the requirements in clauses (i) and (ii) below, as applicable, (an “Assignee”"ELIGIBLE ASSIGNEE") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and AssumptionAcceptance, substantially in the form of Exhibit EH, executed by such Assignee and Eligible Assignee, such Assignor assigning Lender (and, where in the consent case of the Borrower, the Administrative Agent an Eligible Assignee that is not then a Lender or the Issuing Lenders is required pursuant to the foregoing provisionsan Affiliate thereof, by the Borrower and such other PersonsAgent) and delivered to the Administrative Agent for its acceptance acceptance, PROVIDED that (i) such Lender shall assign, and recording in the Register; provided that no Eligible Assignee shall assume, a similar percentage of such assignment to an Assignee Lender=s Existing Senior Obligations and (other than any Lender or any affiliate or Related Fund thereofii) shall be in an the sum of the aggregate principal amount of the Loans, the aggregate amount of the L/C Obligations and the aggregate amount of the Available Commitment being assigned is equal to at least $5,000,000 (or if such Lender=s Commitment is less than $5,000,000, the remaining amount of its Commitment), PROVIDED, FURTHER, that unless Chase shall otherwise consent in writing, the case Eligible Assignee 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 Voting Participant 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 a Voting Participant but shall become a party to this Agreement as among the Facilitiesa direct Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender 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 AssumptionAcceptance, be released from its obligations under this Agreement and its Participation 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, 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 shallAgent, on behalf of the Borrower, shall maintain at its the address of the Agent referred to in Section subsection 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 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 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 AgreementAgreement 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.
(e) Upon its receipt of an Assignment and Assumption Acceptance executed by an Assignor assigning Lender and an Eligible Assignee (and, in any the case where the consent of any other Person an Eligible Assignee that is required by Section 10.6(c)not then a Lender or an Affiliate thereof, by each such other Personthe Agent) together with payment by the Eligible Assignee to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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.
(f) The Borrower authorizes each Lender to disclose, subject to appropriate confidentiality agreements to any Nonvoting Participant or Eligible Assignee (each, a "TRANSFEREE") and any prospective Transferee any and all financial information in such Lender's possession concerning the Borrower and its Affiliates which has been delivered to such Lender by or on behalf of the Borrower pursuant to this Agreement or which has been delivered to such Lender by or on behalf of the Borrower in connection with such Lender's credit evaluation of the Borrower and its Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section subsection 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 Notesinterests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable lawlaw or Federal Reserve Bank requirement.
(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
Samples: Credit Agreement (Recoton 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 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 DocumentsCredit 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.
1the 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 continuingBorrower, 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 AssumptionAcceptance, 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionAgreement 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 shallAgent, 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 timetime 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 AgreementAgreement 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 Personthe 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
Samples: 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”"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.
1the 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 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 it was a Lender; provided PROVIDED that, in the case of Section 2.18, such Participant shall have complied with the requirements of said SectionSection and PROVIDED, and provided, furtherFURTHER, 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) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuingBorrower, the Borrower Issuing Lender 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”"ASSIGNEE") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and AssumptionAcceptance, 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 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 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 Borrower, the Syndication Agent 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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, 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”"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 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 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 RegisterRegister (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 AssumptionAcceptance; 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), 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) 2,000 (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Xxxxxx Commercial Paper Inc. or to (z) in the case of an Assignee which is already a Barclays EntityLender 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 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 Notesinterests, 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
Samples: Credit Agreement (Cumulus 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 AgentsAdministrative 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 Lendervoid.
(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.
18.1 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 2.172.12, 2.18 2.13 and 2.19 2.14 (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 2.182.13, such Participant shall have complied with the requirements of said SectionSection 2.13 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 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 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 EAcceptance, 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 provisionsthis 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 five (5) 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 thereofLender 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 aggregatedSection 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 RegisterRegister (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(c8.6(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 EntitySection 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 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 Notesinterests, 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 Borrowerhereby 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, 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 reduce the consent principal of, or interest on, the Loans or any fees payable hereunder, release all or substantially of all Lenders pursuant the Collateral or the Guarantors from their obligations under the Guarantee and Collateral Agreement, or postpone the date of the final maturity of the Loans, in each case to Section 10.
1the 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 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 lawlaw -------- and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Control Investment Affiliate or Related Fund thereof or, with the consent of (i) the Borrower, the Administrative Agent and so long as no Default or Event (with respect to assignments of Default has occurred and is continuing, Revolving Credit Commitments only) 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 Xxxxxx Commercial Paper Inc. 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 AssumptionAcceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the BorrowerBorrower , 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 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 andAgent; provided further that, after giving effect to such -------- ------- assignment, the assigning Lender (if it aggregate principal amount of such Assignor's Commitment shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating be at least $5,000,000, 2,500,000 (other than in the case of Revolving Credit Commitmentsan assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 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 RegisterRegister (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 AssumptionAcceptance; 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) or Agent 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 Xxxxxx Commercial Paper Inc. or any of its Affiliates or (z) in the case of an Assignee which is already a Barclays EntityLender 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, the Agents 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 NotesNote, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable or Term NotesNote, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term LoansLoan, 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 LoansLoan, as the case may be, upon request, a new Revolving Credit Note and/or Term NotesNote, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term LoansLoan, 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 Notesinterests, 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowerBorrowers, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.16, 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 2.182.17, such Participant shall have complied with the requirements of said SectionSection and PROVIDED, and provided, furtherFURTHER, 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 EAcceptance, 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 provisionsthis 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 BorrowerNSP, 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 BorrowerBorrowers, 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 RegisterRegister (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 multiple3,500, 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 Notesinterests, 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 amendmentabove.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, the BorrowerBorrowers, the Lenders, the AgentsAdministrative 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 LenderLenders 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 BorrowerBorrowers, 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 Documentshereunder. 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 DocumentsAgreement, 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 DocumentsAgreement. 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 Documentthis 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.
1the 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 hereunderParticipant. 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 participationthan 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 RegulationsRegulations 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”) mayshall 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 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 provisionsthis 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 andan 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 Facilitiesforeseeable future. Upon such execution, delivery, acceptance and recordingrecording 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 aggregatedSection 10.6(c).
(d) The Administrative Agent shall, on behalf of the BorrowerBorrowers, 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 conclusiveconstitute prima facie evidence of the same, in the absence of manifest error, and the BorrowerBorrowers, 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 Registerrelevant 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 noticeAssignee.
(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 multipleUS$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 Notesthe 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 hereinabove.
(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 Borrowereach 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
Samples: 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, 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 lawlaw and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or Control Investment 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 and, in the case of Default has occurred and is continuingany 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 that no such (x) the consent of the Borrower and the Administrative Agent need not be obtained with respect to any assignment by any Lxxxxx Entity and (y) the consent of the Borrower need not be obtained with respect to any assignment of funded 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 AssumptionAcceptance, 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 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 $1,000,000, in the case of assignments of Loans and/or Commitments under the Tranche B Term Loan Facility, or $5,000,000, in the case of assignments of Loans and/or Commitments under any assignment of Revolving Credit Commitments, and $1,000,000, other Facility (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 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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 by or to a Barclays Lxxxxx 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, 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 all related costs, fees and expenses assessed against or incurred by such Lender solely in connection with any such assignment to any Federal Reserve Bank or any related re-assignment to such Lender shall be for the sole account of such Lender.
(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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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 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.
1the 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 2.172.16, 2.18 2.17 and 2.19 10.5 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, 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 occurred unless 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 sale of the Borrower (and participation to such agency being solely for tax purposes), maintain a register in Participant is made with the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each ParticipantBorrower’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 Registerprior written consent.
(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 thereofAgent) shall not be in an aggregate principal amount of less than $5,000,0003,000,000, in the case of any assignment of Revolving Credit Commitmentsa Loan, unless each of the Administrative Agent and (unless an Event of Default has occurred and is continuing at the time of such assignment) the Borrower otherwise consents to such lesser amount (each such consent not to be unreasonably withheld or delayed), (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the 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 $1,000,000, 3,500 (except in the case of assignment by or to GS Bank or any assignment of Term Loans (other than in its Affiliates), and the case of an assignment of all of Eligible Assignee, if it shall not be a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and shall deliver to the Administrative Agent and, after giving effect to such assignment, 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 Loansthe “Assignor”) shall have Commitments and Loans aggregating at least $5,000,000assignee 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 recordingrecording thereof by the Administrative Agent pursuant to paragraph (g) of this Section 10.6, (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 2.17(e), from and after the effective date determined pursuant to such specified in each Assignment and AssumptionAcceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth thereinunder this Agreement, and (y) the Assignor assigning Lender thereunder shall, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all of an Assignorthe assigning Lender’s rights and obligations under this Agreement, such Assignor Lender shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 2.16, except as to Sections 2.17, 2.18 and 10.5 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 a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (b) of this Section 10.6. In connection with any consent required from Borrower with respect to an assignment hereunder, Borrower shall be deemed to have consented to such assignment unless it shall object thereto by written notice to Administrative Agent within ten (10) Business Days after having received notice thereof.
(d) Notwithstanding anything to the contrary contained in this Agreement, no assignment or participation shall be made (i) to the Borrower, Holdings or any of their respective 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 period prior to such effective date and Section 10.14). Notwithstanding any provision foregoing Persons described in this clause (ii) of this SectionSection 10.6(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 any Loan Parties) 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 in accordance with its 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 aggregatedthis Agreement until such compliance occurs.
(df) The Administrative Agent shall, on behalf acting solely for this purpose as a non-fiduciary agent 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. 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 RegisterRegister (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), 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 Entityif applicable), 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 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 Notesinterests, 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 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 The Borrower, upon receipt of written notice from 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 Loanrelevant Lender, 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 at the Borrower’s consent which will not be unreasonably withheld. This expense) to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in 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 amendmentabove.
(j) [Reserved].
Appears in 1 contract
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 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 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 Lender grant to 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.
1the 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 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 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 AssumptionAcceptance (an "Assignment and Acceptance"), substantially in the form of Exhibit ED, 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 PersonsBorrower) 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 10.6, 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 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 timetime 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 RegisterRegister (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 of an Assignee that is not then a Lender or an affiliate thereof by the consent of any other Person is required by Section 10.6(c), by each such other PersonBorrower and 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 the case of an assignment by Assignee which is already a Lender or to is an affiliate of a Barclays EntityLender), 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, 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 Article 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 Notesinterests, 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; provided that, for the avoidance of doubt, it is understood that this Section 10.6(f) Notwithstanding anything to does not reduce 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 rights of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (iSections 10.6(b) nothing herein shall constitute a commitment by any SPC to make any Loan and (iic) if an SPC elects not which must be satisfied in order for a Person 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 become 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
Samples: Credit Agreement (Conmed Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative Agent, 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 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, in accordance with applicable lawLaw, 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 Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, no Lender shall be permitted to sell any such participating interest to (i) any of the Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds, (ii) a natural person or (iii) any Disqualified Lender. 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 Term 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 109.
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 through the Lender granting the participation to the benefits of Sections 2.172.15, 2.16 or 2.17 (subject to the requirements and limitations of such Sections, Section 2.18 and 2.19 2.19, including the requirements of Section 2.17(f) through (i) (it being agreed that any required forms shall be provided solely to the participating Lender)) with respect to its participation in the 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, 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 that entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the such Participant acquired acquires the applicable participation, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (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 and interest amounts (and stated interest) of each Participant’s interest in the Term Loans or other obligations under the Loan Documents held by it (the “Participant Register”); provided that no . The entries in the Participant Register shall be conclusive, absent manifest error, and such Lender shall treat each person whose name is recorded in the Participant Register as the owner of the participation in question for all purposes of this Agreement, notwithstanding notice to the contrary. No Lender shall have any obligation to disclose all or any portion of the a Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments 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. 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 lawLaw and the written consent of the Administrative Agent (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made by or to an Arranger) and, so long as no Event of Default under Section 7.1(a) or (f) has occurred and is continuing, the Borrower (which shall not be unreasonably withheld or delayed, and which consent shall not be required in connection with an assignment made to an Arranger) (provided that the Borrower shall be deemed to have consented to any such assignment unless they shall object thereto by written notice to the Administrative Agent within ten Business Days after having received notice thereof), at any time and from time to time assign to any Lender or any Affiliate or Affiliate, Related Fund thereof oror Control Investment Affiliate thereof, 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, 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 assignments made to any Lender, an Affiliate of a Lender or a Related Fund will not be subject to the above described consents; provided, further, that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund Affiliate thereof) of Term 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 1,000,000 (other than in the case of an assignment of all of a Lender’s interests in the Term Loan Facility under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent ) and, after giving effect to such assignmentthereto, the assigning Lender (if it shall retain any Revolving Credit Commitment or Term Loans) shall have Commitments and Term Loans aggregating at least $5,000,0001,000,000 unless otherwise agreed by the Administrative Agent and the Borrower; provided, in the case further, no Lender shall be permitted to assign all or any part of Revolving Credit Commitments, its rights and $1,000,000, in the case obligations under this Agreement to (i) any of the Term Loans. Any such assignment need not be ratable as among Permitted Investors, any of their respective Affiliates or any of their respective associated investment funds, (ii) Holdings, the FacilitiesBorrower or any of their respective Subsidiaries, (iii) any natural person or (iv) any Disqualified Lender. Upon such execution, delivery, acceptance and recordingrecording in the Register, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and AssumptionAcceptance, 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 2.172.16, 2.18 2.17 and 10.5 9.5 in respect of the period prior to such effective date and Section 10.14date). 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.[Reserved];
(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(c9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multipleprovided, simultaneous assignments by or however, that (i) Administrative Agent may, in its sole discretion, elect to two or more Related Funds as a single assignmentwaive such processing and recordation fee in the case of any assignment and (ii) (except that no such registration and processing fee shall be payable required to be paid (A) in connection with an assignment by or to an Arranger or any Affiliate thereof or (B) in the case of an Assignee which is already a Barclays EntityLender or any Affiliate, Related Fund or Control Investment Affiliate thereof), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i1) promptly accept such Assignment and Assumption Acceptance and (ii2) 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, Loan Notes of the assigning Lender) a new Revolving Credit Term Loan 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, 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 Term Loan 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, Loans retained by it hereunder. Such new Term Loan Note or Term Loan Notes shall be dated the Restatement Closing Effective Date and shall otherwise be in the form of the Term Loan Note or Term Loan 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 Term Loans and Term Loan Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Term Loans and Term Loan Notes, including, without limitation, any pledge or assignment by a Lender of any Term Loan or Term Loan Note to any Federal Reserve Bank in accordance with applicable lawLaw.
(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 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 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 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 under the laws of the United States or any state thereof. Each party hereto also agrees that each SPC shall be entitled to the benefits of Sections 2.15, 2.16 or 2.17 (subject to the requirements and limitations of such Sections, Section 2.18 and 2.19, including the requirements of Section 2.17(f) through (i) (it being agreed that any required forms shall be provided solely to the Granting Lender)) with respect to its granted interest in the Commitments and the Term Loans outstanding from time to time as if such SPC were a Lender; provided that no SPC shall be entitled to receive any greater amount pursuant to any such Section than the Granting Lender would have been entitled to receive in respect of the amount of the interest granted by such Granting Lender to such SPC had no such grant occurred, except to the extent that entitlement to a greater amount results from a change in Law that occurs after such interest was granted, unless such transfer was made with the Borrower’s prior written consent (which consent shall not be unreasonably withheld or delayed). In addition, notwithstanding anything to the contrary in this Section 10.6(g9.6(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 with the payment of a processing fee thereforin the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), 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) and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion) to any financial institutions (other than any Disqualified Lender) 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 Borrower any NFE Group Member may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gSection 9.6(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. To the extent an SPC provides a Term Loan, the applicable Lender may maintain a register on behalf of the Borrower and the SPC’s interest must be entered in the register.
Appears in 1 contract
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 AgentsAdministrative 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 the consent of all Lenders pursuant to Section 10.or
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 2.172.12, 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 were it was a Lender; provided that, in the case of Section 2.182.13, 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 EAcceptance, 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 provisionsthis 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 thereofApproved 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 assignmentAgent. 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 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 aggregatedSection 9.6(c).
(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 RegisterRegister (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(c9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple4,000, 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 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 Notesinterests, 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 Loan Party, identified as such in writing from time to time by the Granting each Lender to and the Administrative Agent and the Borrowerhereby 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
Samples: Credit Agreement (Price T Rowe Associates Inc /Md/)
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 AgentsAdministrative 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 Lendervoid.
(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”"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 '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.
1the 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 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 2.172.12, 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 were 45 it was a Lender; provided PROVIDED that, in the case of Section 2.182.13, such Participant shall have complied with the requirements of said SectionSection and PROVIDED, and provided, furtherFURTHER, 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”"ASSIGNOR") may, in accordance with applicable law, at any time and from time to time assign to any Lender Person (an "ASSIGNEE") all or any Affiliate or Related Fund thereof orpart of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and Acceptance, with executed by such Assignee, such Assignor and any other Person whose consent is required pursuant to this paragraph, and delivered to the consent of Administrative Agent for its acceptance and recording in the Register; PROVIDED that (i) the consent of 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) shall be required in the case of (provided that no such consent need be obtained with respect to x) any assignment of Term Loans, unless such assignment is to a Person that is not a motion picture exhibitor Lender or an a Lender Affiliate or related entity (y) any assignment of a motion picture exhibitor, in which case such assignment shall require Commitment to a Person that is not a Lender or a Lender Affiliate (except that the consent of the Borrower), Borrower shall not be required for any assignment that occurs when an Event of Default shall have occurred and be continuing) 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, unless otherwise agreed by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that Agent, no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereofLender 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 aggregatedSection 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”"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, which Register shall be made available to any Lender upon 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 RegisterRegister (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(c8.6(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 assignments by or such fee not 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 Entitythe Borrower), 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 Notesinterests, 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 Borrowerhereby 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
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 AgentsAdministrative 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 Lendervoid.
(b) Any Lender other than any Conduit Lender may, without the consent of the BorrowerBorrower 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 LenderXxxxxx’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.
18.1 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 2.172.12, 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 2.182.13, such Participant shall have complied with the requirements of said SectionSection 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 (iiIneligible 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 EAcceptance, 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 provisionsthis 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 thereofLender 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 LenderXxxxxx’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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 aggregatedSection 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 LoanLoan or Participation, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the RegisterRegister (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(c8.6(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 EntitySection 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 NotesLender, 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 lawBank; 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 Xxxxxx, 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 Borrowerhereby 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentK&F, the BorrowerBorrowers, 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 BorrowerBorrowers, 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.
1the 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 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, 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.88 83
(c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time law and from time with notice to time assign to any Lender or any Affiliate or Related Fund thereof orthe Syndication Agent, with the consent of (i) the Administrative Agent Borrowers 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 consent need be obtained with respect to any assignment of Term Loans, unless such assignment is (x) by or to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, the Syndication Agent for the 15 Business Day period following the Closing Date in which case such assignment shall require connection with the consent initial syndication of the Borrower)Facilities, and (iiy) by a Lender to any Person under common management ("under common management" being deemed for purposes of this agreement to include, in the case of an investment fund, another fund having as its investment advisor the same investment advisor or an affiliate thereof) with such Lender or (z) with respect to any assignment to any Lender or an affiliate thereof, unless, in each case as the result of such assignment a Lender would have Revolving Credit Commitments and Loans exceeding 20% of the aggregate Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldCommitments and Loans), 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 AssumptionAcceptance (an "Assignment and Acceptance"), substantially in the form of Exhibit E, executed by such Assignee Assignee, such Assignor, the Syndication Agent and such Assignor 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 PersonsBorrowers) 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 thereofto any Person under common management with 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), and, after giving effect thereto, the assigning Lender shall have Revolving Credit Commitments and Loans aggregating at least $5,000,000 (other than in the case of an assignment of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower Borrowers, the Syndication Agent 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 for the obligations of the period prior to Borrowers under Section 10.5 which shall survive such effective date and Section 10.14assignment). Notwithstanding any provision of this SectionSection 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 the events described in Sections 8(a) or 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 Commitment of, and principal amount of the Loans owing to, each Lender from time to timetime and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the BorrowerBorrowers, 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 89 84 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 RegisterRegister (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 Personthe Borrowers, the Administrative Agent and the Syndication 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) 4,000 (except that (y) 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 of a Lender or a Person under common management with an assignment a Lender and (z) in the case of contemporaneous assignments by or a Lender to up to two Persons under common management, only a Barclays Entitysingle fee in the amount of $4,000 shall be payable), 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 BorrowerLenders and the Borrowers. On or prior to such effective date, the BorrowerBorrowers, 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 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 Notesinterests, 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.16, 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 2.182.17, 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 Approved Fund (unless, in the case of assignments of Revolving Commitments, such Lender, affiliate or Related Approved Fund thereof is not already a holder of Revolving Commitments) 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 EAcceptance, 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 provisionsthis 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 thereofApproved Fund) shall be in an aggregate principal amount of less than $5,000,0001,000,000 (or, in the case of any assignment of the Tranche A Term Facility and the Revolving Credit CommitmentsFacility, 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 assignmentAgent. 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 continuingcontinuing 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 aggregatedSection 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 promissory note evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Notepromissory note (other than any assignment to a Federal Reserve Bank pursuant to Section 10.6(f)), shall be effective only upon appropriate entries with respect thereto being made in the RegisterRegister (and each promissory note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note promissory note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note promissory note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; Acceptance, and thereupon one or more new Notes in the same aggregate principal amount promissory notes 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, 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 the case of an assignment by or to a Barclays EntityAssignee which is an Approved Fund of the relevant Assignor), 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 Notesinterests, 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 a promissory note to any Lender requiring such note 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 Borrowerhereby 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
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 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 2.172.14, 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 2.182.15, 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, 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 lawlaw 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, if any) 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 continuingDefault, 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 or, notwithstanding any provision of Section 2.20 to the contrary, other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and AssumptionAcceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the BorrowerAdministrative 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 Lender, Related Fund or any affiliate of a Lender or Related Fund thereofFund) shall be in an aggregate principal amount of less than $5,000,0002,000,000 (or, in the case of any assignment of Revolving Credit CommitmentsTerm Loans, 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 andAgent; 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 (other than in the case of Revolving Credit Commitmentsan 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 Borrower and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAdministrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 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 10.1410.6(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 continuingapply. 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 aggregatedaggregated in respect of each Lender and its affiliates or Related Fund, 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 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 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, 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 RegisterRegister (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 AssumptionAcceptance; 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 EntityLender 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, 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 beLoan, 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, 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.
Appears in 1 contract
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 AgentsAdministrative 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 the Borrower 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 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 2.172.14, 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 2.182.15, 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 lawlaw 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 (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and AssumptionAcceptance, 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 is required pursuant to the foregoing provisions, by the Borrower and such other PersonsAdministrative 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 thereof or any Related Fund thereofFund) 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.14, 2.18 2.15 and 10.5 9.5 in respect of the period prior to such effective date and Section 10.14date). 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 Revolving Credit Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Revolving Credit Note, shall be effective only upon appropriate entries with respect thereto being made in the RegisterRegister (and each Revolving Credit Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Revolving Credit Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Revolving Credit Note evidencing such Loan, accompanied by a duly executed Assignment and AssumptionAcceptance; thereupon one or more new Revolving Credit Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Revolving Credit 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(c9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (payable by the Assignor or Assignee, as agreed between such parties) (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 EntityXxxxxxx Xxxxx 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 applicable Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new applicable 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 LoansLoan, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may beNote, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term LoansLoan, as the case may be, retained by it hereunder. Such new Revolving Credit Note or Revolving Credit Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Revolving Credit Note or Revolving Credit 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 Revolving Credit Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Revolving Credit Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Revolving Credit 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(g9.6(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
Samples: Credit Agreement (Nevada Power 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 AgentsAdministrative 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 BorrowerBorrower 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 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.
1the 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 2.172.18, 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 2.182.19, 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 EAcceptance, 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 provisionsthis paragraph, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that provided, 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 thereofLender 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 $1,000,000, in the case of any assignment of Term Loans (other than except in the case of an assignment of all of a Lender’s interests under this Agreement); provided further, unless otherwise agreed by that no US$ Revolving Commitment may be assigned without the Borrower and consent of the Administrative Agent and, after giving effect to such assignmentIssuing Lender. For purposes of the first proviso contained in the 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedSection 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 RegisterRegister (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 multiple3,500, 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 Notesinterests, 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 Borrowerhereby 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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 102 97 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.
1the 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 2.172.19, 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 2.182.20, 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 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 AssumptionAcceptance, 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 Borrower is required pursuant to the foregoing provisions, by the Borrower and such other PersonsBorrower) 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 103 98 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 SectionSection 10.6, 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 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 timetime 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 RegisterRegister (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 Person an Assignee that is required by Section 10.6(c)not then a Lender or an affiliate thereof or a person under common management with such Lender, by each such other Personthe Borrower, 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, 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 of a Lender or a Person under common management with an assignment by or to a Barclays EntityLender), 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, 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.104 99
(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 Notesinterests, 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
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.Section
19.1. 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 2.172.15, 2.18 2.16 and 2.19 2.17 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 2.182.16, 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 lawlaw and upon written notice to the Agents, at any time and from time to time assign to any Lender or any affiliate or Control Investment 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 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 by any assignment Lehmxx Xxxity 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 withheldClosing 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 AssumptionAcceptance, substantially in the form of Exhibit EC, 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 by the Administrative Agent 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 FacilitiesAgents. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.15, 2.18 2.16 and 10.5 9.5 in respect of the period prior to such effective date and Section 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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(c9.6(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 EntityLehmxx Xxxity or (z) in the case of an Assignee which is already a Lender or is an affiliate of a Lender or a Person under common management with a Lender), 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 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
Samples: Credit Agreement (Anc Rental Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.16, 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 EAcceptance, 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 provisionsthis 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 thereofApproved 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 assignmentAgent. 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 aggregatedsubsection 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 RegisterRegister (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 multiple3,500, 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 Notesinterests, 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 Borrowerhereby 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
Samples: 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 AgentsAdministrative 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 Lendervoid). 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.
1the 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 2.172.16, 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 2.182.17, 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 EAcceptance, 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 provisionsthis 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 thereofLender Affiliate) shall be in an aggregate principal amount of less than $5,000,0005.0 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 aggregatedSection 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 RegisterRegister (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 multiple3,500, 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 Notesinterests, 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 Borrowerhereby 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
Samples: 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 DocumentsCredit 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.
1the 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 banka 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 AssumptionAcceptance, 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 thereofAffiliate 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 recordingacceptance, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionAgreement 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 datethis 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
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 DocumentsCredit 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.
1the 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 (with the consent of the Borrower if any increased costs would result therefrom) thereof or Related an 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, 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 bankbank 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 AssumptionAcceptance, substantially in the form of Exhibit EI, 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 provisionsan Affiliate thereof, by the Borrower and such other Personsthe 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionAgreement 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 E-1, E-2, E-3 or E-4, as the case may be, evidencing the Tranche B Term Loans, Tranche A Revolving Credit Loans, Tranche B Revolving Credit Loans and Tranche C Term Loans, respectively, owing to such Lender.
(c) The Administrative Agent shallAgent, 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 AgreementAgreement 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 Personthe Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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 doubtSubject 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 K.
Appears in 1 contract
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 AgentsAdministrative 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.
1the 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 2.172.16, 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 2.182.17, 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 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.other
Appears in 1 contract
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 AgentsLender, 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 their respective 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 BorrowerBorrower or any other Person, 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 the Lender, any Term Loan Commitment of such the 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.shall
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, provided that, 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 were a Lender hereunder. The Borrower and each Lender also agree agrees that each Participant shall be entitled to the benefits of Sections 2.172.11, 2.18 2.12 and 2.19 2.13 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 thatprovided, that in the case of Section 2.182.12, 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 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 Permitted Bank Transferee (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and AssumptionAcceptance, substantially in the form of Exhibit EE (an "Assignment and Acceptance"), executed by such Assignee and such Assignor (andAssignor; provided, 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 Affiliate thereof) shall be in an aggregate principal amount of less than $5,000,00010,000,000 (other than, in the case of any assignment of Revolving Credit Commitmentseach 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 '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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Term Loan Commitments and/or Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and AssumptionAcceptance, 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 2.172.11, 2.18 2.12, 2.13, and 10.5 8.5 in respect of the period prior to such effective date and Section 10.14date). 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 aggregated. Any Assignor shall give the Borrower prompt notice of any assignment of such Assignor's rights and for purposes of obligations hereunder. Notwithstanding anything to the minimum hold amountscontrary stated herein, the Commitments and Loans Borrower shall have no obligation to pay to any Assignee of Related Funds shall STTC any increased costs pursuant to Section 2.12(c) to the extent that such increased costs of such Assignee are greater than the increased costs that would otherwise be aggregatedowing to STTC.
(d) The Administrative Agent Lender 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 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 Borrower and the Lenders Lender shall treat each Person whose name is recorded in the Register as the owner of the Term Loans and any 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 Note, shall be effective only upon appropriate entries with respect thereto being made in the RegisterRegister (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Term 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 Term Loan, accompanied by a duly executed Assignment and AssumptionAcceptance; 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 Lender 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.
(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(c8.6(c), by each such other Person) together with payment to the Administrative Agent Lender 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 EntityLender), 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 Lender (in exchange for the Revolving Credit Term 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 beNote, 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 Term 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, 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.
(f) For the 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.
(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 Lender 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 provided,
(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(g8.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent Lender 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 Lender (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 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 Term Loans outstanding at the time of such proposed amendment.
(h) In the event that there shall be more than one Lender party to this Agreement, amendments, supplements, modifications or waivers hereto or the other Loan Documents may only be made with the written consent of the Required Lenders; provided, however, that no amendment, supplement, modification or waiver shall:
(i) forgive the principal amount or extend the final scheduled date of maturity of any Term Loan, extend the Maturity Date, reduce the stated rate of any interest or fee payable hereunder or extend the scheduled date of any payment thereof, or increase the amount or extend the expiration date of any Term Loan Commitment of any Lender;
(ii) amend, modify or waive any provision of this Section 8.6(h) or reduce any percentage specified in the definition of Required Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations under this Agreement and the other Loan Documents, release all or substantially all of the Collateral or release all or substantially all of the Guarantors from their guarantee obligations under the Guarantee; or
(iii) impose restrictions on assignments and participations that are more restrictive than, or additional to, those set forth in Section 8.6; in each case, without the consent of all the Lenders.
Appears in 1 contract
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 AgentsAdministrative 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.
1the 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 2.172.18, 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 2.182.19, 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 EAcceptance, 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 provisionsthis 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 thereofLender Affiliate) shall be in an aggregate principal amount of less than $5,000,0005,000,000 (or, in the case of any assignment of Revolving Credit Commitmentsthe 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedSection 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 RegisterRegister (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 multiple4,000, 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 Notesinterests, 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 Borrowerhereby 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
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 AgentsAdministrative 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.
1the 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 2.172.18, 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 2.182.19, such Participant shall have complied with the requirements of said SectionSection and PROVIDED, and provided, furtherFURTHER, 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 AssumptionAcceptance, 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 provisionsthis 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 RegisterRegister (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(c11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple4,000, 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 Notesinterests, 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 amendmentabove.
Appears in 1 contract
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 AgentsAdministrative 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 2.172.15, 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 2.182.16, 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 lawlaw 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 withheldcontinuing), 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 AssumptionAcceptance, 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 $5,000,0002,500,000 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 Agreementthe 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.15, 2.18 2.16 and 10.5 in respect of the period prior to such effective date and Section 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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 EntityLender), 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 beCommitment, 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
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 lawlaw 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 continuingany 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 AssumptionAcceptance, 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 thereofor 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 andAgent, 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 LoansLoan 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 recordingrecording in the Register, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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 EntityLender), 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
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentTWTC, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.16, 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 2.182.19, 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 EAcceptance, 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 provisionsthis 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 thereofany Approved Fund) shall be in an aggregate principal amount of less than $5,000,0005,000,000 (or, in the case of any assignment of Revolving Credit Commitmentsthe 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 noticeits 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
Successors and Assigns; Participations and Assignments. (a) This ------------------------------------------------------ Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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 “64 "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.
1the 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 2.172.16, 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 2.182.17, 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 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 EAcceptance, 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 provisionsthis 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 thereofApproved 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 andAgent; provided, -------- further, that in the case of partial assignments (other than to any Lender, any ------- affiliate of any Lender), after giving effect to such assignment, the assigning Lender (if it Assignor's Commitment shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating be at least $5,000,0001,000,000, unless otherwise agreed by the Borrower and the Administrative Agent. For purposes of the proviso contained in the case preceding sentence, the amount described therein shall be aggregated in respect of Revolving Credit Commitmentseach Lender and its related Approved Funds, and $1,000,000, in the case of the Term Loansif 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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.of
(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 RegisterRegister (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, simultaneous assignments by or to two or more Related Funds as a single assignment) 4,000 (except that no such registration and processing fee shall be payable in connection with the case where the Assignee is an assignment by or to a Barclays EntityAffiliate of the Assignor), 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 Notesinterests, 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) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (f) above.
(h) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle that --------------- is an Affiliate of such Lender (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 Bank 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 hereofof this Agreement. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, extent and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable The liability for any indemnity or of similar payment obligation obligations under this Agreement (shall at all liability for which shall times 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 senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state State thereof. In addition, notwithstanding anything to the contrary contained in this Section 10.6(g)10.6, any SPC may (Ai) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying 66 any processing fee thereforthereof, assign all or a portion of its interests in any Loans to the its Granting Lender, Lender or with the prior written consent of to any other financial institutions (consented to by the Borrower and the Administrative Agent (which consent shall not be unreasonably withheldAgent) 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, Loans and (Bii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or of 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
Samples: Credit Agreement (Specrite Brake Co)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentCompany, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.16, 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 2.182.19, 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 AssumptionAcceptance, 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 provisionsan affiliate thereof, by the Borrower and such other Personsthe 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 LoanLender, 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 Registerform 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 LoanObligation(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 Notesinterests, 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
Samples: Credit Agreement (Details Inc)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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.
1the 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 2.172.14, 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 2.182.15, 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 Registersuch 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 EAcceptance, 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 provisionsthis 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 thereofLender 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedSection 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 RegisterRegister (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 multiple1,000, 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 Notesinterests, 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 Borrowerhereby 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
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 AgentsAdministrative 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.
1the 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 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 and subject to the obligations of Sections 2.172.16, 2.18 2.17 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 2.182.17, such Participant shall have complied with the requirements of said SectionSection and PROVIDED, and provided, furtherFURTHER, 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) 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”"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 EAcceptance, 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 provisionsthis 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 be in an aggregate principal amount of less than $5,000,000, in and, after giving effect thereto, the case of any assignment of Revolving Credit Commitments, assigning Lender shall have commitments and Loans aggregating at least $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), 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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”"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 RegisterRegister (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 will 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 multiple4,000, 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 Notesinterests, 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 amendmentabove.
Appears in 1 contract
Samples: Credit Agreement (Department 56 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 AgentsAdministrative 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 LenderLender and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Agreement.
(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 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.
110.1 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 2.172.19, 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 2.182.20, 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 interestinterest 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, 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
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 AgentsAdministrative 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.
1the 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 2.172.12, 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 2.18Sections 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 an agent of the Borrower (and such agency being solely for tax purposesbut 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 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 the 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 EAcceptance, 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 provisionsthis paragraph, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the RegisterRegister (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 thereofLender 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 andits 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 Facilitiespursuant to Section 2.17. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 aggregatedSection 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 RegisterRegister (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(c9.06(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple4,000, 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 Notesinterests, 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 Borrowerhereby 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
Samples: Credit Agreement (Fedex Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsAdministrative 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) no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (x) to an assignee in accordance with the Agents provisions of Section 10.6(c), (y) by way of participation in accordance with the provisions of Section 10.6(b) or (iii) by way of pledge or assignment of a security interest in accordance with the provisions of Section 10.6(h) of this Section (and each Lenderany other attempted assignment or transfer by any party hereto 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 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.
1the 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 2.172.16, 2.18 2.17 and 2.19 10.5 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, 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 unless 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 sale of the Borrower (and participation to such agency being solely for tax purposes), maintain a register in Participant is made with the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each ParticipantBorrower’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 Registerprior written consent.
(c) Any Lender (an “Assignor”) mayFrom the Effective Date until the termination of primary syndication as determined by the Arranger, in accordance with applicable law, at any time and from time to time GS Bank may 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 in accordance with the terms and conditions of the Commitment Letter. Thereafter, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (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 thereofAgent) shall not be in an aggregate principal amount of less than $5,000,0003,000,000, in the case of any assignment of Revolving Credit Commitmentsa Loan, unless each of the Administrative Agent and (unless an Event of Default has occurred and is continuing at the time of such assignment) the Borrower otherwise consents to such lesser amount (each such consent not to be unreasonably withheld or delayed), (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the 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 $1,000,000, 3,500 (except in the case of assignment by or to GS Bank or any assignment of Term Loans (other than in its Affiliates), and the case of an assignment of all of Eligible Assignee, if it shall not be a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and shall deliver to the Administrative Agent and, after giving effect to such assignment, 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 Loansthe “Assignor”) shall have Commitments and Loans aggregating at least $5,000,000assignee 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 recordingrecording thereof by the Administrative Agent pursuant to paragraph (g) of this Section 10.6, (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 2.17(e), from and after the effective date determined pursuant to such specified in each Assignment and AssumptionAcceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth thereinunder this Agreement, and (y) the Assignor assigning Lender thereunder shall, to the extent provided in of the interest assigned by such Assignment and AssumptionAcceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption Acceptance covering all of an Assignorthe assigning Lender’s rights and obligations under this Agreement, such Assignor Lender shall cease to be a party heretohereto but shall continue to be entitled to the benefits of Sections 2.16, except as to Sections 2.17, 2.18 and 10.5 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 a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (b) of this Section 10.6. In connection with any consent required from Borrower with respect to an assignment hereunder, Borrower shall be deemed to have consented to such assignment unless it shall object thereto by written notice to Administrative Agent within ten (10) Business Days after having received notice thereof.
(d) Notwithstanding anything to the contrary contained in this Agreement, no assignment or participation shall be made (i) to the Borrower, Holdings or any of their respective 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 period prior to such effective date and Section 10.14). Notwithstanding any provision foregoing Persons described in this clause (ii) of this SectionSection 10.6(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 any Loan Parties) 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 in accordance with its 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 aggregatedthis Agreement until such compliance occurs.
(df) The Administrative Agent shall, on behalf acting solely for this purpose as a non-fiduciary agent 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. 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 RegisterRegister (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), 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 Entityif applicable), 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 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 Notesinterests, 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 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 The Borrower, upon receipt of written notice from 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 Loanrelevant Lender, 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 at the Borrower’s consent which will not be unreasonably withheld. This expense) to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in 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 amendmentabove.
(j) [Reserved]
Appears in 1 contract
Samples: Bridge Term Loan 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, 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, in the ordinary course of its business, 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 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 2.172.15, 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 2.182.16, 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 the ordinary course of its business, in accordance with applicable lawlaw 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, 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 continuingany 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 from the applicable parties need be obtained with respect to by any assignment of Term LoansDeutsche Bank Entity or by any Lxxxxx Entity in their capacity as Assignors (other than, 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) solely in the case of any assignment of the Revolving Credit Commitments, the consent of the Issuing Lenders Lender and the Swing Line Lender (which consent which, in each case, shall not be unreasonably withheldwithheld or delayed)), 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 AssumptionAcceptance, substantially in the form of Exhibit ED, 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 with respect to assignments of Revolving Credit Commitments, 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, 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, such Assignor shall have Revolving Credit Commitments and Revolving Credit Loans aggregating at least $5,000,000 (if holding any), 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.15, 2.18 2.16 and 10.5 in respect of the period prior to such effective date and Section 10.14date). 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 and minimum 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 RegisterRegister (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 AssumptionAcceptance; 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 by the applicable Assignor or 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 or to a Barclays EntityDeutsche Bank Entity or a Lxxxxx 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 The Borrower, at its own expense, promptly upon requestreceipt of a request by the Administrative Agent, 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 beCommitment, 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 effective date of the relevant assignment 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(g10.6(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 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.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentHoldings, the Borrower, the Lenders, the AgentsPaying 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 Paying 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.
1the 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 2.172.16, 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 2.182.17, 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 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 and the Paying 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 and the other Loan Documents pursuant to an Assignment and Assumption, substantially in the form of Exhibit EAcceptance, 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 provisionsthis paragraph, by the Borrower and such other Persons) and delivered to the Administrative Paying Agent for its acceptance and recording in the Register; provided that that, unless otherwise agreed by the Borrower and the Paying Agent, no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereofLender 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 assignmentpreceding 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 Section 8(f) (with respect to the Borrower) 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 Paying 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 aggregatedSection 10.6(c).
(d) The Administrative Paying 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 Paying 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 RegisterRegister (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 Paying Agent to the Borrower marked “"canceled.” ". The Register shall be made 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 Paying Agent of a registration and processing fee of $3,500 (treating multiple4,000, 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 Paying 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 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 Notesinterests, 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 Lender to the Administrative Agent and the Borrower, each Lender and the option to provide to the Borrower all Paying Agent hereby confirms that it will not institute against a Conduit Lender or join any part of other Person in instituting against a Conduit Lender 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 bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under 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
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 the Borrower 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 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 2.172.14, 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 2.182.15, 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 lawlaw 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 (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and AssumptionAcceptance, 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 is required pursuant to the foregoing provisions, by the Borrower and such other PersonsAdministrative 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 thereof or any Related Fund thereofFund) 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.14, 2.18 2.15 and 10.5 9.5 in respect of the period prior to such effective date and Section 10.14date). 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 Term Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Term Note, shall be effective only upon appropriate entries with respect thereto being made in the RegisterRegister (and each Term Note shall expressly so provide). Any assignment or transfer of all or part of a 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 Loan, accompanied by a duly executed Assignment and AssumptionAcceptance; 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 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(c9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (payable by the Assignor or Assignee, as agreed between such parties) (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 EntityLehman Entity or (z) in the case of an Assignee which is already a Lxxxxx 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 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 LoansLoan, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may beNote, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term LoansLoan, as the case may be, 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.
(f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Term Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Term Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Term 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(g9.6(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
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 (other than pursuant to the Assumption Agreement or as contemplated by subsection 14.4(c)) assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. Upon the consummation of the Assumption, Holding shall be released as the Borrower from all liabilities and obligations under this Agreement and under any Notes (but not from any obligations and liabilities in respect thereof under any other Loan Document to which it is a party).
(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") ------------ 103 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; provided that (unless the Borrower and the Administrative Agent -------- otherwise consent in writing) no such participating interests shall be in an aggregate principal amount of less than $5,000,000 in the aggregate (or, if less, the full amount of such selling Lender's Loans and Commitments). 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 Credit Parties 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 Any agreement pursuant to which any Lender shall any Participant under sell any such participation have any participating interest shall provide that such Lender shall retain the sole right and responsibility to exercise such Lender's rights and enforce each of the Borrower's obligations hereunder, including the right to approve consent to any amendment amendment, supplement, modification or waiver of any provision of this Agreement or any Loan of the other Credit Documents, and no Lender shall be entitled to create in favor of any Participant, in the participation agreement pursuant to which such Participant's participating interest shall be created or otherwise, any right to vote on, consent to or approve any matter relating to this Agreement or any other Credit Document, or any consent to any departure by any Loan Party therefrom, except to the extent provided that such amendmentparticipation agreement may provide that, waiver or consent would require without -------- the consent of all Lenders pursuant the Participant, such Lender will not agree to Section 10.
1any amendment, supplement, modification or waiver, specified in subsection 18.1(g) or (h). 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 2.17subsections 9.13, 2.18 9.14 and 2.19 with respect 9.15 without regard to its participation in the Commitments whether it has granted any participating interests, and the Loans outstanding from time that all amounts payable to time a Lender under subsections 9.13, 9.14 and 9.15 shall be determined 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 Lender had not granted 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 Registerparticipating interests.
(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 (i) any Lender or any Affiliate thereof that is a Permitted Affiliate Transferee (as hereinafter defined), or Related Fund thereof or, (ii) with the consent of the Administrative Agent (iwhich shall not be unreasonably withheld), to any Related Fund or (iii) with the consent of 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 any additional bank, bank or financial institution (any assignee described in clause (i), (ii) or other entity (iii), an “"Assignee”") -------- all or any part of its rights and obligations under this Agreement and the other Credit Documents pursuant to an Assignment and AssumptionAcceptance, substantially in the form of Exhibit ED, executed by such Assignee and Assignee, such Assignor assigning Lender (and, where in the consent case of the Borroweran Assignee that is not then a Permitted Affiliate Transferee, by the Administrative Agent or and, to the Issuing Lenders is extent required pursuant to the foregoing provisionsclause (iii) above, by the Borrower and such other PersonsBorrower) 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 thereofw) shall be in an aggregate principal amount of less than $5,000,000, in the case of any such -------- assignment which is not to a Permitted Affiliate Transferee, the sum of the aggregate principal amount of the Loans, the aggregate amount of the L/C Obligations and the aggregate amount of the Available Revolving Credit Commitment being assigned is not less than $5,000,000 (or, if less, the full amount of such selling Lender's Loans and 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 or such lesser amount as may be agreed to by the Borrower and the Administrative Agent andAgent, after giving effect to such assignment, the assigning Lender (if it shall retain x) any assignment of all or any portion of a Lender's Revolving Credit Commitment or Loans) Tranche A Loans shall have Commitments and Loans aggregating at least $5,000,000, in be accompanied by the case assignment to the same Assignee of Revolving Credit Commitments, and $1,000,000, in the case a ratable share of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such executionother, 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, if any Lender proposes to the extent provided in such Assignment and Assumption, be released from assign all or any part of 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.104
Appears in 1 contract
Samples: Credit Agreement (Dynatech 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 AgentsAdministrative 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.
1the 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 2.172.11, 2.18 2.12 and 2.19 2.13 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, 2.12 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) 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”) Eligible Assignee of all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit EAcceptance, executed by such Assignee and Eligible 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 provisionsthis 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 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 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 AssumptionAcceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 continuingcontinuing with respect to Borrower. For purposes On or prior to the date of any assignment to an Eligible Assignee that is not already a Lender hereunder pursuant to this Section, such Eligible Assignee shall deliver to Borrower and the minimum assignment amounts set forth Administrative Agent certification as to exemption from deduction or withholding of taxes 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 aggregatedaccordance with Section 2.12.
(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. Any assignment or transfer of all or part of a Loan evidenced by a Register (and each 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 noticeexpressly so provide).
(e) Upon its receipt of an Assignment and Assumption Acceptance executed by the parties to such assignment, together with each Note subject to such assignment, Agent shall (a) record the information contained therein in the Register, and (b) give prompt notice thereof to Borrower and Lenders (other than the assigning Lender). Within five (5) Business Days after receipt of such notice, Borrower, at its own expense, shall execute and deliver to Agent, in exchange for each surrendered Note, a new Note to the order of such Eligible Assignee in an amount equal to the amount assumed by such Eligible Assignee pursuant to such Assignment and Acceptance and, if the assigning Lender has retained some portion of its obligations hereunder, a new Note to the order of the assigning Lender in an amount equal to the amount retained by it hereunder. Such new Notes shall provide that they are replacements for the surrendered Notes, shall be in an aggregate principal amount equal to the aggregate principal amount of the surrendered Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be substantially the form and substance of the assigned Notes.
(f) Upon its receipt of an Assignment and Acceptance executed by an Assignor Assignor, an Eligible Assignee and an Assignee (and, in any case where the consent of any other Person whose consent is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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.
(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 Notesinterests, 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, . No such pledge or assignment or enforcement thereof shall release 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 its obligations 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 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 amendmentDocuments.
Appears in 1 contract
Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ParentCompany, the Borrower, the Lenders, the AgentsAdministrative 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 Company or 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.
1the 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 2.172.16, 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 2.182.17, 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 or any Affiliate thereof or Related any Approved Fund thereof or, with the consent of (i) Details 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 AssumptionAcceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where in the consent case of the Borroweran Assignee that is not then a Lender or an affiliate thereof or Approved Fund, by Details and the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other PersonsAgent) 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 thereofApproved 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 interests under this Agreement), unless otherwise agreed to by the Borrower Details and the Administrative Agent andAgent, after giving effect and provided, further, that no such assignment to any Assignee may be made prior to the second anniversary of the Restatement Effective Date unless the proportionate rights and obligations under the Lender Warrant Agreement are also assigned 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 LoansAssignee. 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, have the rights and obligations of a Lender hereunder and under the other Loan Documents 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 AssumptionAcceptance, be released from its obligations under this Agreement and under the other Loan Documents (and, in the case of an Assignment and Assumption Acceptance covering all of an Assignor’s rights and obligations under this AgreementAgreement and the other Loan Documents, such Assignor assigning Lender shall cease to be a party hereto, except as to Sections 2.17, 2.18 hereto and 10.5 in respect of the period prior to such effective date and Section 10.14thereto). Notwithstanding any provision of this SectionSection 10.6, the consent of Details 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 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 shallAgent, on behalf acting for this purpose as an agent 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 thereof or Approved Fund, by Details 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 of a Lender or Approved Fund; 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 LoanLender, 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, or F-3, 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 Restatement Effective 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 Registerform of Exhibit F-3 or Exhibit 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 2.17(d). 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 LoanObligation(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 Notesinterests, 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
Samples: Credit Agreement (Ddi Capital Corp/Dynamic 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, 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 lawlaw 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 continuingany assignment of Revolving Credit Commitments, the Borrower written consent of the Swing Line Lender and Bank of America (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 withheldAgent), 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 AssumptionAcceptance, 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, Swing Line Lender 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 $5,000,0003,000,000 (other than, in the case of any assignment of Revolving Credit Commitmentseach 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 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent ) and, after giving effect to such assignmentthereto, the assigning Lender (if it shall retain any Revolving Credit Commitment Commitments or Loans) shall have Commitments and Loans aggregating at least $5,000,0003,000,000, in each case, unless otherwise agreed by the case of Revolving Credit Commitments, Borrower 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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(cclause (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 payable, (y) in connection with an assignment by or to a Barclays EntityLehman Entity or (z) in the case of an Assignee which is already a Xxxxxx or 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 NotesSwing Line Note, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term NotesSwing Line 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 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 NotesSwing Line Note, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the 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
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 BorrowerBorrower 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
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 AgentsAdministrative 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.
1the 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 2.172.15, 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 2.182.16, 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 EAcceptance, 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 provisionsthis 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 thereofApproved 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 assignmentAgent. 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 continuingcontinuing 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 aggregatedSection 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 RegisterRegister (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 multiple4,000, 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 Notesinterests, 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 Borrowerhereby 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
Samples: Credit Agreement (Intira 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 AgentsAdministrative 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 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 2.172.15, 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 2.182.16, 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 lawlaw 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 withheldcontinuing), 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 AssumptionAcceptance, 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 $5,000,0002,500,000 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 interests under this Agreementthe 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 2.17Section 2.15, 2.18 2.16 and 10.5 in respect of the period prior to such effective date and Section 10.14date). 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 RegisterRegister (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 AssumptionAcceptance; 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, 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 EntityLender), 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 beCommitment, 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
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 BorrowerBorrower 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.
1the 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 2.172.15, 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 2.182.16, 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 thereofApproved 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 AssumptionAcceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionAcceptance, 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 AssumptionAcceptance, 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 SectionSection 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 RegisterRegister (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(c9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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 hereinnotwithstanding, 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 withheldSection 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 Lendersdoubt, 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 amendmentapplicable law.
Appears in 1 contract
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 AgentsAgent, 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.
1the 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 Assumptiona 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 provisionsan 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 AssumptionCommitment Transfer Supplement, (x1) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and AssumptionCommitment 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 shallassigning Lender thereunder, to the extent provided in such Assignment and AssumptionCommitment 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 10.149.5 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 shallshall 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 Personthe Borrower and the Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple3,500, 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 LenderLender marked "Canceled") a new Revolving Credit Note and/or applicable or Term NotesNote, 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 LoansLoan, 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 requestLoan hereunder, a new Revolving Credit Note and/or or Term NotesNote, 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 LoansNote, 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.
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