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 ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, ~~2.18~~ 2.17 and ~~2.19~~ 9.5 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~, except~~ . Each Lender selling participations (other than the sale of participations to a Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the ~~extent~~ Borrower and the Administrative Agent of such ~~entitlement~~ participations and of the identity of the purchasers of such participations; provided that no delay or failure of such notice to ~~receive a greater amount results from~~ be so given shall affect the ~~adoption of, or a change in any Requirement~~ validity of ~~Law that occurs after the Participant acquired the applicable participation~~such sale. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register ~~to any Person~~ (including the identity of any Participant or any information relating to a Participant’s interest in any ~~Commitments~~ commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a Loan, unless each of the Administrative Agent and ~~$1,000,000~~the Borrower otherwise consents to such lesser amount, ~~in the case of any~~ (ii) each partial assignment ~~of Term Loans (other than in the case of~~ shall be made as an assignment of a proportionate part of all ~~of a~~ the assigning Lender’s ~~interests~~ rights and obligations under this ~~Agreement), unless otherwise agreed by~~ Agreement with respect to the ~~Borrower~~ Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent ~~and~~an Assignment and Acceptance, ~~after giving effect~~ together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to ~~such assignment,~~ the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender (~~if it shall retain any Revolving Credit Commitment or Loans~~the “Assignor”) ~~shall have Commitments~~ and ~~Loans aggregating at least $5,000,000~~assignee Lender (the “Assignee”), ~~in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery,~~ (ii) acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this paragraph (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 9.5. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as ~~to Sections 2.17, 2.18~~ a sale by such Lender of a participation in such rights and ~~10.5~~ obligations in ~~respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision~~ accordance with paragraph (c) of this Section. (d) Notwithstanding anything to the contrary contained in this Agreement, no assignment shall be made (i) to the Borrower or any of its Subsidiaries or Affiliates, or (ii) to any Defaulting Lender or any of its Subsidiaries, or any Person, who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (ii) of this Section 9.6(d). (e) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment (but not including the Borrower) shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower ~~shall~~ and the Administrative Agent, the applicable pro rata share of Loans previously requested but not ~~be required for~~ funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Swingline Loans in accordance with its Revolving Percentage. Notwithstanding the foregoing, in the event that any assignment ~~that occurs at~~ of rights and obligations of any ~~time when any Event~~ Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of ~~Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in~~ this paragraph, ~~multiple assignments to or by two or more Related Funds~~ then the assignee of such interest shall be ~~aggregated and~~ deemed to be a Defaulting Lender for all purposes of ~~the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~this Agreement until such compliance occurs. (df) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal ~~amount~~ and stated interest amounts of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. In addition, the Administrative Agent shall maintain on the Register information regarding the designation, and revocation of designation, of any Lender as a Defaulting Lender. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (eg) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fh) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (gi) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~j) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 3 contracts

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ affect the ~~consent~~ Participant as described in (i) of ~~all Lenders pursuant~~ the proviso in Section 9.1, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that ~~if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of~~ at any time that an Event of ~~Default~~Default has occurred and is occurring, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time upon three Business Days notice to the Administrative Agent assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the ~~Administrative Agent~~ Borrower, and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the ~~Borrower~~ Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided ~~that no such~~ the consent of the Borrower need not be obtained with respect to any assignment ~~of Term Loans, unless such assignment is~~ to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldLender), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EG, executed by such ~~Assignee and~~ Assignee, such Assignor and the Administrative Agent (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), and that after giving effect to any partial assignment, the Assignor shall remain the Lender in respect of Loans in an aggregate principal amount of no less than $5,000,000, unless otherwise agreed by the Borrower and the Administrative Agent ~~and, after giving effect to~~ and that no such ~~assignment,~~ assignment shall be effective until executed by the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAdministrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrower or the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (~~treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (~~except that no such registration and processing fee shall be payable (y) in connection with an assignment by The Toronto-Dominion Bank or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the ~~Revolving Credit Note and/or applicable Term Notes, as the case may be,~~ Notes of the assigning Lender) , a new ~~Revolving Credit Note and/or applicable Term Notes, as the case may be~~Note, to the order of such Assignee in an amount equal to the ~~Revolving Credit Commitment and/or applicable Term Loans, as the case may be,~~ amount assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ assigning Lender has retained ~~a Revolving Credit Commitment and/or~~ Term Loans~~, as the case may be~~, upon request, a new ~~Revolving Credit Note and/or~~ Term ~~Notes, as the case may be~~Note, to the order of the ~~Assignor~~ assigning Lender in an amount equal to the ~~Revolving Credit Commitment and/or~~ applicable Term Loans~~, as the case may be~~, retained by it hereunder. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

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~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan or other interest for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or the stated rate of ~~all Lenders pursuant~~ interest on, the Loans or any fees payable hereunder, or postpone the date of the final maturity of the Loans or Reimbursement Obligations, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or ~~unpaid~~unpaid after any applicable grace periods, or shall have been declared or shall have become due and payable upon the occurrence and during the continuation of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans and Letters of Credit outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or ~~Related~~ Approved Fund thereof or, with the consent of the Borrower (~~i) the Administrative Agent and so long as~~ if no ~~Default or~~ Event of Default has occurred and is continuing, ) and the ~~Borrower~~ Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by the Syndication Agent or any ~~assignment~~ of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldits affiliates), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent~~ Borrower or the ~~Issuing Lenders~~ Agents is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (i) no such assignment to an Assignee (other than any Lender or any affiliate or ~~Related~~ Approved Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of (a) an assignment of all of a Lender’s 's interests under this ~~Agreement~~Agreement or (b) an assignment to another Lender or an Affiliate of such Assignor), unless otherwise agreed by the ~~Borrower~~ Borrower, the Syndication Agent and the Administrative Agent ~~and~~and (ii) if the Assignor is a Revolving Credit Lender, ~~after giving effect~~ such Assignor's rights and obligations with respect to ~~such assignment, the assigning Lender (if it shall retain any~~ its Revolving Credit Commitment or ~~Loans)~~ any part thereof shall ~~have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans~~be assigned to an Eligible Assignee. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have (in addition to the rights and obligations theretofore held by it) the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the Assignor and the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled~~"cancelled.” " The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500~~ 3,000 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by Xxxxxx Commercial Paper Inc. or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Approved Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement Closing~~ Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

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 Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of ~~the~~ Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities other than to a Competitor (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and ~~the~~ Borrower and ~~the Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. ~~The~~ Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) Eligible Assignee all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ 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 provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to ~~the~~ Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by Borrower and Administrative Agent, no such assignment to an Eligible Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of ~~the~~ Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. For purposes 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, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Eligible Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ 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 multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 2 contracts

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

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 ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of ~~all Lenders~~ the Lender from which such participation was purchased pursuant to Section 109. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.10, ~~2.18~~ 2.11, 2.12 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of ~~Section 2.18~~Sections 2.12 and 2.16, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof or, with the written consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Commitments, the ~~Borrower~~ written consent of the Issuing Lenders (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained by the Arranger or any of its Affiliates with respect to any assignment by either of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldthem), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EA, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any ~~affiliate~~ Affiliate or Related ~~Fund thereof)~~ Fund), in the case of an assignment of Revolving Commitments and/or Loans, shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), and after giving effect thereto, the Assignor, in the case of an assignment of Revolving Commitments and/or Loans, shall have Revolving Commitments and/or Loans aggregating at least $5,000,000 unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, ~~and~~ (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.10, ~~2.18~~ 2.11, 2.12 and ~~10.5~~ 9.4 in respect of the period prior to such effective ~~date~~ date), and (z) the assignee shall comply with Section ~~10.14~~2.16 (f). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by or to ~~or by~~ two or more Related Funds shall be ~~aggregated and for purposes of~~ aggregated. Notwithstanding anything herein to the ~~minimum hold amounts~~contrary, neither the ~~Commitments and Loans of Related Funds shall~~ Borrower nor any Affiliate thereof may be ~~aggregated~~an “Assignee” hereunder. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be ~~conclusive, in~~ presumptive evidence of the ~~absence of manifest error~~amounts so entered, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.7(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (~~treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (~~except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an Affiliate or Related Fund of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the ~~Revolving Credit Note and/or~~ applicable ~~Term Notes, as the case may be,~~ Notes of the assigning Lender) a new ~~Revolving Credit~~ Note ~~and/or applicable Term Notes, as the case may be,~~ to the order of such Assignee in an amount equal to the Revolving ~~Credit~~ Commitment ~~and/or applicable Term Loans, as the case may be,~~ assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving ~~Credit~~ Commitment ~~and/or Term Loans, as the case may be,~~ upon request, a new ~~Revolving Credit~~ Note and/or ~~Term~~ Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving ~~Credit~~ Commitment ~~and/or applicable Term Loans, as the case may be,~~ retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.7 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other ~~indebtedness~~ Debt of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~10.6(g~~9.7(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This ~~paragraph (g~~Section 9.7(g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

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 ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in the ordinary course of business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party or any other Person therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on any Loan, or postpone the date of ~~all Lenders pursuant~~ the final maturity of any Loan, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said Section~~, and~~ ; provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred; and provided, ~~except to the extent such entitlement to receive a greater amount results from the adoption of~~further, ~~or a change in any Requirement of Law~~ that ~~occurs after the~~ each Participant ~~acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose~~ will be treated as a ~~non-fiduciary agent~~ Lender for purposes of the ~~Borrower (~~application of Sections 2.17 and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register2.18. (c) Any Lender (an “"Assignor”") may, in the ordinary course of business and in accordance with applicable law, at any time and from time to time assign to (i) any Lender, (ii) any Lender Affiliate, or ~~any Affiliate or Related Fund thereof or,~~ (iii) with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, (i) no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~10,000,000 and (ii) after such assignment, the sum of (1) the aggregate principal amount of Loans and (2) the Commitments in excess of the ~~case~~ principal amount of ~~any assignment of Revolving Credit Commitments~~Loans to be retained by the Assignor, ~~and~~ if any, shall equal at least $~~1,000,000~~10,000,000, ~~in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 11.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ In addition, if the Assignee is a Non-U.S. Person, such Assignee shall also deliver the documents required under Section 2.15(b). Such Assignment and Acceptance shall be deemed to amend this Agreement to the extent, and only to the extent, necessary to reflect the addition of such Assignee and the resulting adjustment of Percentage arising from the purchase by such Assignee of all or a portion of the ~~minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated~~ rights and ~~for purposes~~ obligations of the ~~minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Assignor. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and ~~a register (~~the ~~“Register”)~~ Register for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and each Loan Party, the ~~Borrower, each~~ Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~11.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption and~~ Acceptance, (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register on the effective date determined pursuant thereto and (iii) give notice of such acceptance and recordation to the ~~Borrower. On or prior to such effective date,~~ Lenders and the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 2 contracts

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~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the ~~Commitment~~ Revolving Credit Commitments of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan or other obligation hereunder (whether or not evidenced by a Note, ) shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an affiliate thereof, by ~~each such other Person~~the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice~~ on the effective date determined pursuant thereto. (f) The Loans made by each Lender shall be evidenced by a Note issued by the Borrower, substantially in the form of Exhibit G-1, G-2 or G-3, as the case may be, payable to the order of such ~~acceptance~~ Lender. Each Lender is hereby authorized to record, on the schedule annexed to and constituting a part of the relevant Note, information regarding the relevant Loans made by such Lender, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided that the failure to make any such recordation or any error in such recordation shall not affect the Borrower's obligations hereunder or under any Note. On or prior to ~~such~~ the effective ~~date~~date of an Assignment and Acceptance, the Borrower, at its own expense, ~~upon request,~~ shall execute and (g) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and ~~deliver~~ any prospective Transferee any and all financial information concerning the Loan Parties and their respective affiliates which has been delivered to ~~the Administrative Agent (~~such Lender by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document or which has been delivered to such Lender by or on behalf any Loan Party in ~~exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be,~~ connection with such Lender's credit evaluation of the ~~assigning Lender) a new Revolving Credit Note and/or applicable Term Notes~~Loan Parties and their respective affiliates, as under the ~~case may be,~~ condition that such Transferee or prospective Transferee shall previously have agreed to be bound by the ~~order~~ provisions of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationSection 10.15. (fh) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

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 Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of~~ a ~~Lender’s interests under this Agreement)~~Loan, unless ~~otherwise agreed by the Borrower and~~ each of the Administrative Agent and, ~~after giving effect~~ so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to ~~such assignment~~be unreasonably withheld or delayed), (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $1,000, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender and assignee Lender, (~~if it shall retain any Revolving Credit Commitment or Loans~~ii) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 10.5. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as ~~to Sections 2.17, 2.18~~ a sale by such Lender of a participation in such rights and ~~10.5~~ obligations in ~~respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision~~ accordance with paragraph (c) of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~1,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 2 contracts

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~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing -------- such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case -------- of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to -------- ------- receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, -------- at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of -------- its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided -------- that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(f) shall have occurred and be ~~continuing. For purposes of~~ continuing with respect to the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregatedBorrower. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the -------- recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 2 contracts

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 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~~Borrower, the ~~Borrower~~Guarantor, the Lenders, the ~~Agents~~Issuing Bank, the Administrative Agent, all future holders of ~~the Loans~~ any Extensions of Credit and their respective successors and assigns, except that neither the Borrower nor the Guarantor may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Issuing Bank and each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any ~~Loan owing to~~ Extensions of Credit made by such Lender, any Commitment of such Lender or and any other ~~interest~~ Reimbursement Obligations and other interests of such Lender hereunder and under the other ~~Loan~~ Credit Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any ~~such Loan~~ Extensions of Credit and other Reimbursement Obligations for all purposes under this Agreement and the other ~~Loan~~ Credit Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other ~~Loan~~ Credit Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any ~~Loan~~ Credit Document, or any consent to any departure by any ~~Loan~~ Credit Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, any Extensions of ~~all Lenders pursuant~~ Credit or any fees payable hereunder, postpone the date of the final maturity of any Extensions of Credit or release the Guarantor from its obligations under Article Nine of this Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and ~~the Loans~~ any Extensions of Credit and other Reimbursement Obligations are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 12.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.6, ~~2.18~~ 2.7 and ~~2.19~~ 3.9 with respect to its participation in the Commitments and ~~the Loans~~ any Extensions of Credit and other Reimbursement Obligations outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~3.9, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or ~~any Affiliate or Related Fund thereof or, with the consent of~~ more Eligible Assignees (~~i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in~~ each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and any Extensions of Credit and other Reimbursement Obligations at the time owing to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Registerit); provided that ~~no such assignment to an Assignee~~ (~~other than any Lender or any affiliate or Related Fund thereof~~i) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than except in the case of an assignment of ~~all~~ the entire remaining amount of a the assigning Lender’s ~~interests under this Agreement), unless otherwise agreed by~~ Commitment and any Extensions of Credit at the ~~Borrower and the Administrative Agent and, after giving effect~~ time owing to ~~such assignment, the assigning Lender (if~~ it ~~shall retain any Revolving Credit Commitment~~ or ~~Loans) shall have Commitments and Loans aggregating at least $5,000,000,~~ in the case of ~~Revolving~~ an assignment to a Lender or a Lender Affiliate, the aggregate amount of the Commitment (which for this purpose includes any Extensions of Credit ~~Commitments~~outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000, unless each of the Administrative Agent and the Borrower otherwise consents to such lesser amount, (iii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to any Extensions of Credit or the Commitment assigned and (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and ~~$1,000,000~~such Assignee, in if it shall not be a Lender, shall deliver to the ~~case~~ Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the ~~Term Loans. Any~~ Assignment and Acceptance by the assigning Lender and such ~~assignment need not be ratable as among the Facilities. Upon such execution~~Assignee, ~~delivery,~~ (ii) acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such Assignee is not a United States person (as such term is defined in Section 7701(a)(30) of the Code), compliance by such Person with Section 3.9, from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x) the~~ such Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto, except as~~ hereto but shall continue to ~~Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not~~ be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued entitled to the ~~designated Assignee~~benefits of Sections 2,6, 2.7, 3.9 and ~~the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled~~12.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

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 Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ affect the ~~consent~~ Participant as described in (i) of ~~all Lenders pursuant~~ the proviso in Section 9.1, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that ~~if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of~~ at anytime that an Event of ~~Default~~Default has occurred and is continuing, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time upon three Business Days notice to the Administrative Agent assign to any Lender or any ~~Affiliate~~ affiliate thereof or ~~Related~~ any Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower, and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided ~~that no such~~ the consent of the Borrower need not be obtained with respect to any assignment ~~of Term Loans, unless such assignment is~~ to a ~~Person that is a motion picture exhibitor~~ Lender or an any Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldthereof), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EI, executed by such ~~Assignee and~~ Assignee, such Assignor and the Administrative Agent (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000~~that, ~~in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (~~other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), after giving effect to such assignment, and to all other assignments by such Assignor and assignments to such Assignee, the sum of the Commitments of and Loans owing to such Assignee, and if such Assignor is assigning only a portion of its Commitments and Loans, of such Assignor, is at least $5,000,000 unless otherwise agreed by the Borrower and the Administrative Agent ~~and, after giving effect to~~ and that no such ~~assignment,~~ assignment shall be effective until executed by the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAdministrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party ~~hereto~~hereto except for the obligations of the Borrower under Section 9.5, ~~except as~~ which shall survive such assignment). Subject to Sections ~~2.17~~2.18(d) and (e), ~~2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding~~ but notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrower or the Administrative Agent) together with payment by the Assignor or the Assignee to the Administrative Agent of a registration and processing fee of $3,500 (~~treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (~~except that no such registration and processing fee shall be payable (y) in connection with an assignment by The Toronto-Dominion Bank or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or ~~applicable~~ Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or ~~applicable~~ Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ assigning Lender has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term ~~Notes~~Note, as the case may be, to the order of the ~~Assignor~~ assigning Lender in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 2 contracts

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 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, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or but unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in ~~Section 10.7(a)as~~ subsection 10.7 (a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 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~~subsection 2.15, such Participant shall have complied with the requirements of ~~said Section,~~ such subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, 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 (i) any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or(provided that the consent of such Issuing Lender shall be obtained in connection with any assignment of Revolving Commitments to an affiliate of a Lender), (ii) 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~~such Issuing Lender, ~~the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or ~~the~~ such Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower or the Borrower and such other Persons, as the case may be) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, and except in the case of an assignment by a Lender of all of its Revolving Commitment and/or Loans under this Agreement and the 364-Day Revolving Credit Agreement, (i) no ~~such~~ assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) of Revolving Commitment and/ or Loans under this Agreement shall be in an ~~aggregate principal~~ amount which, when aggregated with the amount of Revolving Commitment and/ or Loans under (and as defined in) the 364-Day Revolving Credit Agreement assigned concurrently with such assignment hereunder, is less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments,~~ 5,000,000 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,~~ ii) after giving effect to ~~such assignment~~any assignment hereunder, the ~~assigning Lender~~ Assignor must have Revolving Commitment and/or Loans under this Agreement in an amount which, when aggregated with the amount of Revolving Commitment and/ or Loans of such Assignor under (~~if it shall retain any~~ and as defined in) the 364-Day Revolving Credit ~~Commitment or Loans) shall have Commitments and Loans aggregating~~ Agreement, is at least $~~5,000,000, in the case~~ 10,000,000. Each assignment of Revolving Commitments and/or Loans by a Lender must be accompanied by an assignment by such Assignor Lender to the same Assignee of a proportionate amount of such Assignor Lender's Revolving Commitments and/or Loans under (and as defined in) the 364-Day 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~~Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~subsection 10.6(c), the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. 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.or

Appears in 1 contract

Samples: Revolving Credit Agreement (Tesoro Petroleum Corp /New/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the obligations of Sections 2.18, 2.20 and 2.21) with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided ~~that~~that a Participant shall not be entitled to the benefits of any such Section unless the Borrower is notified of the participation sold to such Participant and, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred, except~~ occurred and the aggregate amount of any payments payable under any such Section to the ~~extent~~ transferor Lender and its Participant shall not exceed the amount of such ~~entitlement~~ payments to ~~receive a greater amount results from~~ which the ~~adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable~~ transferor Lender would have been entitled had it not sold such participation. ~~Each Lender that sells a participation shall~~Except as set forth in this Section 10.6(b), ~~acting solely for this purpose as a non-fiduciary agent of~~ the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall not have any obligation ~~to disclose all~~ or ~~any portion of the Participant Register~~ duty to any ~~Person (including the identity of any Participant or any information relating to a~~ Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~1,000,000), in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be ~~continuing~~continuing and for which notice (other than in the case of an Event of Default under Section 8(f)) shall have been given to the Borrower. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~2,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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,~~ 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, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or but unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in ~~Section 10.7(a)as~~ subsection 10.7 (a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 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~~subsection 2.15, such Participant shall have complied with the requirements of ~~said Section,~~ such subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, 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 (i) any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or(provided that the consent of such Issuing Lender shall be obtained in connection with any assignment of Revolving Commitments to an affiliate of a Lender), (ii) 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~~such Issuing Lender, ~~the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or ~~the~~ such Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower or the Borrower and such other Persons, as the case may be) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, and except in the case of an assignment by a Lender of all of its Revolving Commitment and/or Loans under this Agreement and the Revolving Credit Agreement, (i) no ~~such~~ assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) of Revolving Commitment and/ or Loans under this Agreement shall be in an ~~aggregate principal~~ amount which, when aggregated with the amount of Revolving Commitment and/ or Loans under (and as defined in) the Revolving Credit Agreement assigned concurrently with such assignment hereunder, is less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments,~~ 5,000,000 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,~~ ii) after giving effect to ~~such assignment~~any assignment hereunder, the ~~assigning Lender~~ Assignor must have Revolving Commitment and/or Loans under this Agreement in an amount which, when aggregated with the amount of Revolving Commitment and/ or Loans of such Assignor under (~~if it shall retain any~~ and as defined in) the Revolving Credit ~~Commitment or Loans) shall have Commitments and Loans aggregating~~ Agreement, is at least $~~5,000,000, in the case~~ 10,000,000. Each assignment of Revolving Commitments and/or Loans by a Lender must be accompanied by an assignment by such Assignor Lender to the same Assignee of a proportionate amount of such Assignor Lender's Revolving Commitments and/or Loans under (and as defined in) the Revolving Credit ~~Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities~~Agreement. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~subsection 10.6(c), the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. 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.or

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative 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 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~~ the Term Loans 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~~ the Loan ~~Document~~Documents, or any consent to any departure by ~~any~~ the Loan ~~Party~~ Parties 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 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~~ 10.7 as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.11 and ~~2.19~~ 2.12 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~~2.12, 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~~ Sections 2.11 or 2.12 than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (assign to any other Person; provided that no such assignment shall be made to the Borrower, any Subsidiary, the Parent or any of their respective Affiliates; 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 withheld)MidMarket Entity, to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, 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 Persons~~Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.11, ~~2.18~~ 2.12 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption 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 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~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Term Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of ~~any Loan~~the Term Loans, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (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 (y) in connection with an assignment by or to a ~~Barclays Entity~~MidMarket Entity or (z) in the case of an Assignee which is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the ~~Revolving Credit Note and/or applicable Term Notes, as the case may be,~~ 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,~~ Loans 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,~~ Loans retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of ~~any Loan~~ the Term Loans 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~~ the Term Loans 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~~ the Term Loans 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~~ the Term Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of 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 (XCel Brands, 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.~~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 ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower and the Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by the Agents or their affiliates and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, 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 thereof or any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less ~~than~~ than, with respect to the Term Loans, $~~5,000,000~~1,000,000, and, with respect to the Revolving Credit Loans, the amount set forth in the ~~case of any assignment of~~ Revolving Credit ~~Commitments~~Supplement, and, after giving effect thereto, the related Assignor shall have Commitments and Loans aggregating at least $1,000,000, in the case of ~~any assignment~~ the Term Loan Facility, and, the amount set forth in the Revolving Credit Supplement, in the case of ~~Term Loans~~ the Revolving Credit Facility (other than in the case of an assignment to a Related Fund or of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.16, ~~2.18~~ 2.17 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” " The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. If any amendment or waiver relating to this Agreement or any other Loan Document is pending, at the request of any Lender, the Administrative Agent shall provide such Lender with a list of the names of all the Lenders. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment (by the Assignor or the Assignee, as agreed between them) 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~~Xxxxxx 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~~Note, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or ~~applicable~~ Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or ~~applicable~~ Term 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~~Loan, as the case may be, upon request, a new Revolving Credit Note and/or Term ~~Notes~~Note, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or ~~applicable~~ Term ~~Loans~~Loan, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle (an “"SPC”"), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~10.6(g~~9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s '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 (Infinity Property & Casualty 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 ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund ~~thereof~~ or Control Investment Affiliate of a Lender or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by the Administrative Agent or any of its affiliates and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EE (an "Assignment and Acceptance"), executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that (A) no such assignment to an Assignee (other than any Lender or any ~~affiliate or~~ affiliate, Related Fund ~~thereof~~or Control Investment Affiliate of a Lender) shall be in an aggregate principal amount of less than $~~5,000,000,~~ 1,000,000 (in the case of ~~any assignment of Revolving Credit Commitments, and~~ the Term Loan Facility) or $~~1,000,000,~~ 5,000,000 (in the case of ~~any~~ the Revolving Credit Facility), unless (1) otherwise agreed by the Borrower and the Administrative Agent or (2) such assignment ~~of Term Loans (other than in the case of~~ represents an assignment of all of a Lender’s 's interests under this ~~Agreement)~~Agreement and (B) if the Assignor shall retain any Loans or Commitments after giving effect to such assignment, such Loans and Commitments shall, unless otherwise agreed by the Borrower and the Administrative ~~Agent and~~Agent, ~~after giving effect to such assignment, the assigning Lender~~ be in an aggregate principal amount of not less than $1,000,000 (~~if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000,~~ in the case of the Term ~~Loans~~Loan Facility) and $5,000,000 (in the case of the Revolving Credit Facility). Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and ~~recording~~recording in the Register, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more affiliates, Related Funds ~~shall be aggregated and for purposes~~ or Control Investment Affiliates of ~~the minimum hold amounts, the Commitments and Loans of Related Funds~~ a Lender shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans and stated interest owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more affiliates, Related Funds or Control Investment Affiliates of a Lender as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate, Related Fund or Control Investment Affiliate of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle (an “"SPC”"), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Beverly Enterprises Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (it being understood that the ~~Agents~~ transfer of the rights and ~~each~~ obligations of the Company hereunder to the Successor Subsidiary on the Push-Down Date shall not require the consent of the Administrative Agent or any Lender). (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes 72 under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating -------- interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant -------- shall have complied with the requirements of said ~~Section,~~ Section and provided, further, -------- ------- that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable -------- law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or -------- any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an affiliate thereof, by the Borrower and ~~such other Persons~~the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee -------- (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the Assignor, new Notes shall not be required to be executed and delivered by the Borrower, for any assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 8 shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of -------- the Lenders and the ~~Commitment~~ Commitments of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such Loans~~ Loan recorded therein for all purposes of this Agreement~~. Any assignment~~ . (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate thereof, by the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) record the information contained therein in the Register on the effective date determined pursuant thereto. (i) To the extent requested by any ~~Loan~~Lender, ~~whether or not~~ the Loans made by such Lender shall be evidenced by a Note issued by the Borrower, substantially in the form of Exhibit F-1, F-2, F-3 or F-4, as the case may be, payable to the order of such Lender (or, in the case of any Alternative Note, payable to such Lender or its registered assigns); provided that no such Notes need be issued or -------- delivered until after the Push-Down Date. Each Lender is hereby authorized to record, on the schedule annexed to and constituting a part of the relevant Note, information regarding the relevant Loans made by such Lender, and any such recordation shall constitute prima facie evidence of the accuracy of the ----- ----- information so recorded, provided that the failure to make any such recordation -------- or any error in such recordation shall not affect the Borrower's obligations hereunder or under any Note. On or prior to the effective date of an Assignment and Acceptance, the Borrower, at its own expense, shall, to the extent requested by the Assignee, execute and deliver to the Administrative Agent, in exchange for the relevant Notes, new Notes to the order of the Assignee and, if applicable, the Assignor. Such new Notes shall be ~~effective only upon appropriate entries with~~ dated the Closing Date. (ii) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in ---------- respect ~~thereto being made~~ of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrower (through the Administrative Agent), and the Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) substantially in the ~~Register~~form of Exhibit F-3 or F-4, as the case may be (each, an "Alternative Note"). Alternative Notes may ---------------- not be exchanged for promissory notes that are not Alternative Notes. Each Non- U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if ---------------------- such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.19(b). An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of ~~a Loan evidenced by a Note~~ such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~Note~~ Alternative Note(s) evidencing such ~~Loan~~Obligation(s), duly endorsed by (or accompanied by a written 74 instrument of assignment or transfer duly executed ~~Assignment~~ by) the Alternative Noteholder thereof, and ~~Assumption;~~ thereupon one or more new ~~Notes~~ Alternative Note(s) in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee(s). No assignment of an Alternative Note and the ~~old Notes~~ Obligations evidenced thereby shall be ~~returned by~~ effective unless it has been recorded in the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior noticeRegister. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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 ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party ~~therefrom,~~ therefrom except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower, the Syndication Agent and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and, after giving effect to such assignment~~Agent. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(f) shall have occurred and be ~~continuing~~continuing with respect to the Borrower. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it my have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment by the parties to such assignment to the Administrative Agent of a registration and processing fee of $~~3,500~~ 3,000 (~~treating multiple~~or, ~~simultaneous~~ in the case of assignments by or to ~~two or more Related Funds as a single assignment) (except that no such registration~~ the Syndication Agent and ~~processing fee shall be payable in connection with an assignment by or to a Barclays Entity~~its affiliates, $500), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless, each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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 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 each Lender or all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the ~~Administrative Agent~~ Borrower and ~~so long as no Default or Event~~ the Agents and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of each affected 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 Borrower need not be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or ~~the~~ an 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 (other than in the case of an assignment of all of a Lender’s interests under this Agreement) to an Assignee (other than any Lender or any affiliate thereof) shall be in an aggregate principal amount of less than $1,000,000 (in the case of assignments of Term Loans) or $5,000,000 (in the case of assignments of Revolving Credit Commitments and Revolving Credit Loans), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.19, ~~2.18~~ 2.20 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. If any request for an amendment, waiver or other modification in respect of any Loan Document shall be pending, the Administrative Agent will, upon the request of any Lender, provide to such Lender a list of the names of each of the Lenders. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. In the event that the consent of all or any portion of the Lenders is required pursuant to any provision of any Loan Document at a time when any Loan is held by any SPC, such SPC and the Granting Lender that would otherwise have been obligated to make such Loan shall agree between themselves as to which of them shall be entitled to grant or withhold any consent applicable to such Loan, and the other parties to the Loan Documents shall be entitled to rely conclusively on the advice of such Granting Lender as to which of such Granting Lender or such SPC is entitled to grant or withhold such consent. This paragraph (g) may not be amended without the written consent of ~~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 (Magellan Midstream Partners Lp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Commitment~~ Credit-Linked Deposit Amount 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 109. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.11, ~~2.18~~ 2.12 and ~~2.19~~ 2.13 with respect to its participation in the ~~Commitments~~ Credit-Linked Deposit Amount and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.12, 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~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the~~ Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof or any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 500,000 (other than in the case of (i) assignments made within 30 days of the Closing Date for the purpose of consummating the primary syndication of the Credit-Linked Deposit Amount or (ii) an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ Credit-Linked Deposit Amounts and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.11, ~~2.18~~ 2.12, 2.13 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more Related Funds shall be ~~aggregated and for purposes~~ aggregated. Without the consent of the ~~minimum hold amounts~~Administrative Agent, the ~~Commitments~~ Credit-Linked Deposit Amount of any Lender shall not be released in connection with any assignment by such Lender, but shall instead be purchased by the relevant assignee and ~~Loans~~ continue to be held for application (to the extent not already applied) in accordance with Section 2.2 to satisfy such assignee's obligations in respect of ~~Related Funds~~ the aggregate then outstanding principal amount of the Loans. Each Lender agrees that, upon the effectiveness of any assignment by it of all or any portion of its Credit-Linked Deposit Amount, the corresponding portion of the assignor Lender's Applicable Percentage of the amount on deposit in the Credit-Linked Account shall be ~~aggregated~~deemed to have been transferred to the assignee. (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~~ Lenders, and the ~~Commitment of, and~~ principal amount of the Loans owing to, and the amount of the Credit-Linked Deposit Amount of, 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 recorded therein, and ~~any Notes evidencing such Loans recorded therein~~ relevant Applicable Percentage of the amounts on deposit in the Credit-Linked Account, for all purposes of this Agreement. Any assignment of any ~~Loan, whether~~ Loan or ~~not evidenced by a Note,~~ Credit-Linked Deposit Amount 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (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 (i) if the parties to such assignment shall electronically execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent in its sole discretion (which initially shall be Clearpar, LLC) the registration and processing fee shall be $500 and (ii) no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Xxxxxxx 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 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~~ Credit-Linked Deposit Amounts relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in ~~Loans and Notes~~Loans, 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~~ Credit-Linked Deposit Amount of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~10.6(g~~9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, ~~guarantee~~ 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 ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.07(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.12, ~~2.18~~ 2.13 and ~~2.19~~ 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of ~~Section 2.18~~Sections 2.13 and 2.14, such Participant shall have complied with the requirements of said ~~Section,~~ Sections; and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register~~Register (as defined below); provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, and after giving effect to such assignment, such assigning Lender shall have Commitments and Loans in ~~the~~ an aggregate amount of at least $5,000,000 in each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000,~~ described in ~~the case of any assignment of Term Loans (other than~~ this sentence except in the case of an assignment of all of a Lender’s interests under this Agreement). For purposes of the proviso contained in the preceding sentence, ~~unless otherwise agreed by~~ the ~~Borrower~~ amount described therein shall be aggregated in respect of each Lender and ~~the Administrative Agent and~~its Lender Affiliates, ~~after giving effect~~ if any. The Assignee shall purchase, at par, all Loans and pay all accrued interest and other amounts owing to such ~~assignment,~~ Assignor under this Agreement on or prior to the ~~assigning Lender (if it shall retain~~ date of assignment for any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment ~~need not be ratable as among the Facilities~~pursuant to Section 2.16. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, relinquish its rights (other than its rights under Section 2.13, 2.14, and 9.05 to the extent any claim thereunder relates to an event arising prior to the effective date of such assignment) and be released from its obligations (other than its obligations under Section 8.07 with respect to matters arising prior to the effective date of such assignment) under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 9.06, the consent of the Borrower shall not be required for any assignment that occurs after the occurrence and during the continuance of an Event of Default. Notwithstanding the foregoing, any Conduit Lender may assign at any time ~~when any Event of Default shall have occurred and be continuing. For purposes~~ to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 9.06(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.02 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~9.06(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption and~~ Acceptance, (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register on the effective date determined pursuant thereto, and ~~give notice~~ (iii) promptly notify Borrower of ~~such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at~~ its ~~own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be,~~ receipt of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationAcceptance. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.06 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of the Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party to this Agreement for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Samples: Credit Agreement (Federal Express Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, ~~2.18 and 2.19~~ 2.17and 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~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a Loan, unless each of the Administrative Agent and ~~$1,000,000~~the Borrower otherwise consents to such lesser amount, ~~in the case of any~~ (ii) each partial assignment ~~of Term Loans (other than in the case of~~ shall be made as an assignment of a proportionate part of all ~~of a~~ the assigning Lender’s ~~interests~~ rights and obligations under this ~~Agreement), unless otherwise agreed by~~ Agreement with respect to the ~~Borrower~~ Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent ~~and~~an Assignment and Acceptance, ~~after giving effect~~ together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to ~~such assignment,~~ the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender (~~if it shall retain any Revolving Credit Commitment or Loans~~the “Assignor”) ~~shall have Commitments~~ and ~~Loans aggregating at least $5,000,000~~assignee Lender (the “Assignee”), ~~in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery,~~ (ii) acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this paragraph (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 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. (d) Notwithstanding anything to the contrary contained in this Agreement, no assignment 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 foregoing Persons described in this clause (ii) of this Section 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 and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Percentage. Notwithstanding the foregoing, in the event that any assignment ~~that occurs at~~ of rights and obligations of any ~~time when any Event~~ Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of ~~Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in~~ this paragraph, ~~multiple assignments to or by two or more Related Funds~~ then the assignee of such interest shall be ~~aggregated and~~ deemed to be a Defaulting Lender for all purposes of ~~the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~this Agreement until such compliance occurs. (df) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (eg) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fh) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (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 Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~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~~ Agent and each Lender. Nothing expressed or implied herein is intended to give, or shall be construed to give, any Person, other than the parties hereto and their permitted successors and assigns hereunder, any benefit or legal or equitable right, remedy or claim under or by virtue of this Agreement or under or by virtue of any provision herein. (b) Any Lender 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; PROVIDED that no such participation to a Participant shall be in an aggregate principal amount of less than $5,000,000 (other than in the case of a participation of all of a Lender's interests under this Agreement), unless otherwise agreed by the Borrower and the Agent. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement 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 hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of ~~setoff~~ set-off in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ~~provided~~ 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 ~~Section~~Section and PROVIDED, ~~and provided, further~~FURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such ~~transfer~~ participation 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~~ Borrower, and the 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~~ 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 made when any Event of ~~the Revolving Credit Commitments, the Issuing Lenders (which consent~~ Default shall ~~not~~ have occurred and be ~~unreasonably withheld~~continuing), to an additional bank, financial institution or other entity (an ~~“Assignee”~~"ASSIGNEE") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee and~~ Assignee, such Assignor and the Agent (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrower) and delivered to the ~~Administrative~~ Agent for its acceptance and recording in the Register; ~~provided~~ 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~~10,000,000 (or, in the case of any ~~assignment of Revolving Credit Commitments~~Tranche C Term Loan, ~~and~~ $~~1,000,000, in the case of any assignment of Term Loans (~~5,000,000) other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, 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”~~"REGISTER") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the ~~Administrative~~ Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrower, the 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 Entity~~Lender), ~~and~~ the ~~acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative~~ Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the 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 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Friendlys Restaurants Franchise Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan 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. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in -------- purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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~~law -------- and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrower , the Administrative Agent 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 and~~Agent; 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 Commitments~~an 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 Facilities~~Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the -------- recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s 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 Entity~~Lender or is an affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders, 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~~Note, as the case may be, of the assigning Lender) a new Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term ~~Loans~~Loan, 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~~Loan, as the case may be, upon request, a new Revolving Credit Note and/or Term ~~Notes~~Note, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term ~~Loans~~Loan, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Sba Communications Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ no Borrower may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of ~~the~~ any Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a ~~“Participant”~~"PARTICIPANT") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and ~~the Borrower~~ NSP and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The ~~Borrower agrees~~ Borrowers agree that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ~~provided~~ PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The ~~Borrower and each Lender~~ Borrowers also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; ~~provided~~ PROVIDED that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section~~Section and PROVIDED, ~~and provided, further~~FURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an ~~“Assignor”~~"ASSIGNOR") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ NSP and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an ~~“Assignee”~~"ASSIGNEE") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; ~~provided~~ PROVIDED that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) ~~shall~~ shall, unless otherwise agreed by NSP and the Administrative Agent, be in an aggregate principal amount (treating multiple, simultaneous assignments to two or more Approved Funds managed by the same investment advisor as a single assignment) of less than ~~$5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loansi) ~~shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and~~ $1,000,000, in the case of the Term Loans, (ii) $2,500,000, in the case of the U.S. Revolving Loans, or (iii) C$2,500,000, in the case of the Canadian Loans, unless the entire Commitments and Loans and other interests of the assigning Lender (and of all Lenders which are Approved Funds managed by the same investment advisor as the assigning Lender) are so assigned; and PROVIDED FURTHER that no such assignment of all or any part of the Canadian Commitment or the Canadian Extensions of Credit shall be made in favor of any Person which is a non-resident of Canada for the purpose of Section 212 of the Income Tax Act (Canada). Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of ~~the Borrower~~ NSP shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of ~~the Borrower~~NSP, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the ~~“Register”~~"REGISTER") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrowers, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 1 contract

Samples: Credit Agreement (Norcross Capital Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the ~~Borrower~~ Borrowers may not assign or transfer any of ~~its~~ their rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers or the Agents, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the ~~Borrower~~ Borrowers and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The ~~Borrower agrees~~ Borrowers agree that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The ~~Borrower and each Lender~~ Borrowers also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such ~~Participant~~ Participants shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or ~~Related~~ Approved Fund ~~thereof~~ of any Lender or, with the consent of the Borrowers, (iif the Assignee will be a Revolving Credit Lender) the Issuing Lender and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrowers, (if the Assignee will be a Revolving Credit Lender) the Issuing Lender or the Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the ~~Borrower~~ Borrowers, (if the Assignee will be a Revolving Credit Lender) the Issuing Lender and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or ~~Related~~ Approved Fund ~~thereof~~of any Lender) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the ~~Borrower~~ Borrowers and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or 108 not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender to the Administrative Agent for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (~~treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (~~except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate or Approved Fund of any Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the ~~Borrower~~Lenders and the Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at ~~its~~ their own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Senior Credit Agreement (Abry Holdings Iii Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of ~~the~~ Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and ~~the~~ Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. ~~The~~ Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.11, ~~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 E~~Acceptance, 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 provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an 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 ~~Assumption~~Acceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of ~~the~~ Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be ~~continuing~~continuing 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 aggregated~~accordance 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 multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ 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

Samples: Credit Agreement (Sunrise Assisted Living Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~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. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower~~an 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 Persons~~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 ~~Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed to by ~~the Borrower~~ Details and the Administrative ~~Agent and~~Agent, ~~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 ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder 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 ~~Assumption~~Acceptance, 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 ~~Agreement~~Agreement 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 10.14~~thereto). Notwithstanding any provision of this ~~Section~~Section 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 shall~~Agent, ~~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 ~~Loan~~Lender, ~~whether or not~~ the Loans made by such Lender shall be evidenced by a Note issued by the Borrower, substantially in the form of Exhibit F-1, F-2, 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 ~~Register~~form 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 ~~Loan~~Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed ~~Assignment~~ by) the Alternative Noteholder thereof, and ~~Assumption;~~ thereupon one or more new ~~Notes~~ Alternative Note(s) in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee(s). No assignment of an Alternative Note and the ~~old Notes~~ Obligations evidenced thereby shall be ~~returned by~~ effective unless it has been recorded in the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior noticeRegister. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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 obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender 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, all affected Lenders, or all affected Lenders under a particular Facility pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing~~and, 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 written consent of the Issuing ~~Lenders~~ Lender and the Swing Line Lender (which ~~consent~~ shall not be unreasonably withheld, delayed or conditioned), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, 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~~ Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.19, ~~2.18~~ 2.20 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; ~~thereupon~~ thereupon, if requested by the Assignee, one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower 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 Entity~~the Administrative Agent or any of its affiliates), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. ~~On or prior to such effective date, the~~ The Borrower, at its own expense, promptly upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (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, delayed or conditioned) 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, delayed or conditioned. 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 (Verint Systems Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ no Borrower may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by the ~~Agents~~ Subsidiary Borrower or the Canadian Borrower as permitted by Section 7.3) and ~~each Lender~~Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23. (b) Any Lender other than any Conduit Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions or other entities~~ Eligible Assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender ~~hereunder and under the other Loan Documents~~hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement and the other Loan Documents~~Agreement, and the ~~Borrower~~ Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and the other Loan Documents~~Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~any Loan Document~~this Agreement, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such ~~Participant~~ Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be ~~deemed~~ required to ~~have agreed to share~~ deal directly with one another in respect of, the ~~Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if~~ participation of such ~~Participant were a Lender hereunder~~Participant. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, ~~except~~ no Loan Party shall be required to ~~the extent such entitlement to receive a~~ pay any greater amount ~~results from~~ pursuant to Section 2.18 as a result of the ~~adoption of, or~~ transfer of a ~~change in any Requirement of Law that occurs after the~~ participation to a Participant ~~acquired the applicable participation~~than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~Commitments~~ commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury ~~Regulations~~Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with the Canadian Borrower for purposes of the Income Tax Act (Canada). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~may~~shall be permitted to assign, in accordance with applicable law, ~~at any time~~ all or a portion of its Loans and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving ~~Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld),~~ Commitments hereunder to an ~~additional bank, financial institution or other entity~~ Eligible Assignee (an “Assignee”) ~~all~~ with the consent, not to be unreasonably withheld, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or ~~any part~~ a Lender Affiliate or (ii) an Event of ~~its rights~~ Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and ~~obligations under this Agreement~~ is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender pursuant to an Assignment and Assumption, ~~substantially in the form of Exhibit E,~~ executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register; provided~~ relevant Register (it being understood and agreed that no such ~~assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof)~~ Assignee, if it shall not be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender~~’s interests under this Agreement)~~, ~~unless otherwise agreed by the Borrower and~~ shall deliver to the Administrative Agent ~~and~~an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, ~~after giving effect~~ including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the ~~assigning Lender (if it shall retain~~ cost under this Agreement to any ~~Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000,~~ Borrower in the ~~case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities~~foreseeable future. Upon such execution, delivery, acceptance and ~~recording~~recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the ~~Borrower shall not be required for~~ Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (~~the~~ each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in ~~the~~ each Register shall ~~be conclusive~~constitute prima facie evidence of the same, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~the~~ each Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; , and thereupon one or more new Notes ~~in the same aggregate principal amount shall~~ may be issued to the designated Assignee, ~~and the old Notes shall be returned~~ if requested by ~~the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to~~ such ~~Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice~~Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of ~~$3,500 (treating multiple~~US$3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the relevant Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fg) For avoidance of ~~doubt,~~ doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit ~~assignments creating security interests in Loans and Notes~~the granting of security, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) ~~Notwithstanding anything to the contrary contained herein~~above. (i) Each Borrower, ~~any~~ each Lender ~~(a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to~~ and the Administrative Agent ~~and the Borrower~~each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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 ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any affiliate or 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 continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the ~~Administrative Agent~~ Agents or the Issuing ~~Lenders~~ Lender 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 ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any ~~Lender (with respect to any entry relating to such~~ Lender~~’s 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

Samples: Credit Agreement (Tesoro Petroleum Corp /New/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Cpi Aerostructures Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in ~~Section 10.7(a)as~~ subsection 10.7 (a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of ~~Sections 2.17~~subsections 2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of ~~Section 2.18~~subsection 2.17, such Participant shall have complied with the requirements of said ~~Section,~~ subsection and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in the ordinary course of its business and in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an affiliate thereof, by the Borrower and ~~such other Persons~~the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 2,500,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~subsection 10.6, the consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the Assignor, new Notes shall not be required to be executed and delivered by the Borrower, for any assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 8(f) shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall maintain at its address referred to in ~~Section~~ subsection 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the ~~Commitment~~ Commitments of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan or other obligation hereunder (whether or not evidenced by a Note, ) shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or of any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other Person~~ an Assignee that is ~~required by Section 10.6(c)~~not then a Lender or an affiliate thereof, by ~~each such other Person~~the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register on the effective date determined pursuant thereto and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, ~~upon request,~~ shall execute and deliver to the Administrative Agent (in exchange for ~~the~~ any Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes, as the case may be,~~ Note of the assigning Lender) a new Revolving Credit Note ~~and/or applicable~~ or Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment ~~and/or applicable~~ or portion of the Term ~~Loans~~Loan, as the case may be, assumed ~~or acquired~~ by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ assigning Lender has retained a Revolving Credit Commitment ~~and/or~~ or portion of a Term ~~Loans, as the case may be, upon request~~Loan hereunder, a new Revolving Credit Note ~~and/or~~ or Term ~~Notes~~Note, as the case may be, to the order of the ~~Assignor~~ assigning Lender in an amount equal to the Revolving Credit Commitment ~~and/or applicable~~ or Term ~~Loans~~Loan, as the case may be, retained by it hereunder. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby~~. In~~ . (f) The Loans made by each Lender shall be evidenced by a Note issued by the ~~event that~~ Borrower, substantially in the ~~Administrative Agent has received a Revolving Credit Note and/or a Term Note~~form of Exhibit G-1 or G-2, as the case may be, ~~from~~ payable to the ~~assigning~~ order of such Lender. Each Lender is hereby authorized to record, on the schedule annexed to and constituting a part of the relevant Note, information regarding the relevant Loans made by such Lender, and any such recordation shall constitute prima facie evidence of the accuracy of the information so recorded, provided that the failure to make any such recordation or any error in such recordation shall not affect the Borrower's obligations hereunder or under any Note. On or prior to the effective date of an Assignment and Acceptance, the Borrower, at its own expense, shall execute and deliver to the Administrative ~~Agent shall promptly return~~ Agent, in exchange for the relevant Notes, new Notes to the ~~Borrower such Note and/or~~ order of the Assignee and, if applicable, the Assignor. Such new Notes ~~for cancellation~~shall be dated the Closing Date and shall otherwise be in the form of the Notes replaced thereby. (fg) The Borrower authorizes each Lender to disclose to any Participant or Assignee (each, a "Transferee") and any prospective Transferee any and all financial information concerning the Loan Parties and their respective affiliates which has been delivered to such Lender by or on behalf of any Loan Party pursuant to this Agreement or any other Loan Document or which has been delivered to such Lender by or on behalf any Loan Party in connection with such Lender's credit evaluation of the Loan Parties and their respective affiliates, under the condition that such Transferee or prospective Transferee shall previously have agreed to be bound by the provisions of subsection 10.15. (h) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this ~~Section~~ subsection 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.security

Appears in 1 contract

Samples: Credit Agreement (STC Broadcasting Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders or each affected Lender pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any ~~Lender~~ Lender, any lender under the Revolving Credit Facility, or any ~~Affiliate~~ affiliate or Related Fund thereof or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EC, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no consent of the Borrower shall be required for any assignment if any Event of Default has occurred and is continuing; provided, further, that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.13, ~~2.18~~ 2.14 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (~~except that no such registration and processing fee shall be payable in connection with an assignment~~ unless otherwise agreed to by ~~or to a Barclays Entity~~the Administrative Agent), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the ~~Revolving Credit Note and/or~~ applicable ~~Term Notes, as the case may be,~~ Notes of the assigning Lender) a new ~~Revolving Credit Note and/or~~ applicable ~~Term Notes, as the case may be,~~ Notes to the order of such Assignee in an amount equal to the ~~Revolving Credit Commitment and/or~~ applicable ~~Term Loans, as the case may be,~~ Loans assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained ~~a Revolving Credit Commitment and/or Term~~ Loans~~, as the case may be~~, upon request, a new ~~Revolving Credit Note and/or Term Notes, as the case may be,~~ Notes to the order of the Assignor in an amount equal to the ~~Revolving Credit Commitment and/or~~ applicable ~~Term Loans, as the case may be,~~ Loans retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Tesoro Corp /New/)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower and the Agents (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained ~~with respect to any assignment~~ by Lehman Commxxxxxx Paper Inc. for a period of ~~Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require~~ 180 days following the ~~consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld~~Closing Date), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such ~~Assignee and~~ Assignee, such ~~Assignor~~ Assignor, the Agents (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgents. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Revolving Credit Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 11.6, the consent of the Borrower shall not be required for any assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 8(f) shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrower, the Administrative Agent, the Arranger and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (~~treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (~~except that no such registration and processing fee shall be payable (y) in connection with an assignment by Lehman Commxxxxxx Paper Inc. or to (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders and the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note ~~and/or applicable Term Notes, as the case may be,~~ of the assigning Lender) a new Revolving Credit Note ~~and/or applicable Term Notes, as the case may be,~~ to the order of such Assignee in an amount equal to the Revolving Credit Commitment ~~and/or applicable Term Loans, as the case may be,~~ assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ assigning Lender has retained a Revolving Credit ~~Commitment and/or Term Loans, as the case may be~~Commitment, upon request, a new Revolving Credit Note ~~and/or Term Notes, as the case may be,~~ to the order of the ~~Assignor~~ assigning Lender in an amount equal to the Revolving Credit Commitment ~~and/or applicable Term Loans, as the case may be,~~ retained by it hereunder. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Paying 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. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells 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 E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the ~~Administrative~~ 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 thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $~~1,000,000, in ~~the~~ each case ~~of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default 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 aggregated~~Section 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the ~~Administrative~~ 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 multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the ~~acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative~~ 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 Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by the Granting 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

Samples: Credit Agreement (M & F Worldwide Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, 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 ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said ~~Section~~Section 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 ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit EE (an “Assignment and Acceptance”), executed by such Assignee and such Assignor ~~(and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders 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 ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.19, ~~2.18~~ 2.20, 2.21, 9.12 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the 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 Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the 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

Samples: First Lien Credit Agreement (Edgen Murray LTD)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ 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 ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the~~ Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof or any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.14, ~~2.18~~ 2.15 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (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 ~~Register~~Register (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 ~~Assumption~~Acceptance; 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(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (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 Entity~~Xxxxxxx 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 Loans~~Loan, as the case may be, upon request, a new Revolving Credit ~~Note and/or Term Notes, as the case may be~~Note, to the order of the Assignor in an amount equal to the ~~Revolving Credit Commitment and/or~~ applicable ~~Term Loans~~Loan, 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(g~~9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s '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 Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of ~~all Lenders~~ the Lender from which the Participant purchased its interest pursuant to Section ~~10. 1~~10.1(i) or (ii). The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of each Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that ~~no such~~ the consent of the Borrower need not be obtained with respect to any assignment of Tranche B Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~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~~Agent; and provided further that, ~~after giving effect to such assignment~~notwithstanding the foregoing, ~~the assigning Lender~~ (~~if it shall retain~~ i) any ~~Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case~~ assignment of Revolving Credit ~~Commitments,~~ Loans and ~~$1,000,000, in the case~~ Revolving Credit Commitments may be made only to a commercial bank or any other financial institution whose senior unsecured debt rating is at least A-2 by S&P and at least P-2 by Moody's and (ii) no assignment shall be permitted to a competitor ox xxx Xorrower or to any entity (other than a financial institution) that is an affiliate or related entity of ~~the Term Loans~~any such competitor. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of (A) an Assignee which is already a Lender or is a Control Investment Affiliate or Related Fund of a Lender or a Person under common management with an a Lender or (B) any assignment made by the Syndication Agent or ~~to a Barclays Entity~~any of its Affiliates), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Tranche B Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Tranche B Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Tranche B Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Tranche B Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, if at any ~~Lender~~ time Bank of America assigns all of its Commitments and Loans pursuant to subsection (~~a “Granting Lender”~~c) ~~may grant to a special purpose funding vehicle (an “SPC”)~~above, ~~identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower~~Bank of America may, ~~the option to provide~~ upon 30 days' notice to the Borrower and the Lenders, resign as Issuing Lender. In the event of any such resignation as Issuing Lender, the Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as Issuing Lender. If Bank of America resigns as Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Lender and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 3.3(c)). (h) Notwithstanding anything to the contrary contained herein, any Lender that is a fund may create a security interest in all or any ~~part~~ portion of ~~any Loan that such Granting Lender would otherwise be obligated~~ the Loans owing to ~~make~~ it and the Notes, if any, held by it to the ~~Borrower pursuant to this Agreement;~~ trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.6, (i) ~~nothing herein~~ no such pledge shall ~~constitute a commitment by~~ release the pledging Lender from any ~~SPC to make any~~ of its obligations under the Loan Documents and (ii) ~~if an SPC elects not to exercise~~ such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent trustee shall not be ~~unreasonably withheld)~~ entitled to exercise any ~~financial institutions providing liquidity and/or credit support to or for~~ of the ~~account~~ rights of a Lender under the Loan Documents even though such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information trustee may have acquired ownership rights with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentpledged interest through foreclosure or otherwise.

Appears in 1 contract

Samples: Credit Agreement (Perkinelmer Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by ~~any Loan Party~~ the Borrower therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 109. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said ~~Section~~Section (including the requirements of Section 2.14(d) or Section 2.14(e) as applicable, as though it were a Lender), and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit EC, executed by such Assignee and such Assignor ~~(and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or thereof, including any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement)) and, after giving effect thereto, the assigning Lender (if it shall retain any commitments or Loans) shall have commitments and Loans aggregating at least $1,000,000, in each case, unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.13, ~~2.18~~ 2.14 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment~~) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity~~), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the ~~Revolving Credit Note and/or~~ applicable Term ~~Notes, as the case may be,~~ Notes of the assigning Lender) a new ~~Revolving Credit Note and/or~~ applicable Term ~~Notes, as the case may be,~~ Notes to the order of such Assignee in an amount equal to the ~~Revolving Credit Commitment and/or~~ applicable Term ~~Loans, as the case may be,~~ Loans assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained ~~a Revolving Credit Commitment and/or~~ Term Loans~~, as the case may be~~, upon request, a new ~~Revolving Credit Note and/or~~ Term ~~Notes, as the case may be,~~ Notes to the order of the Assignor in an amount equal to the ~~Revolving Credit Commitment and/or~~ applicable Term ~~Loans, as the case may be,~~ Loans retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement Closing~~ Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~10.6(g~~9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ (i) reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder in which the Participant shares, (ii) postpone any date fixed for any payment of principal or interest with respect to the Loans in which the Participant shares, or (iii) release all ~~Lenders pursuant to Section 10. 1~~or substantially all of the Collateral except (x) as contemplated by the terms of any Loan Document or (y) in exchange for substitute collateral of equal or greater value. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such -------- Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have -------- complied with the requirements of said ~~Section,~~ Section and provided, further, that no -------- ------- Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable -------- law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement -------- pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000~~that, ~~in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and~~Agent, ~~after giving effect~~ no such assignment to ~~such assignment~~an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund) shall (i) be in an aggregate principal amount of less than $2,500,000 or (ii) cause the Assignor to have Aggregate Exposure of less than $2,500,000. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amounts described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(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 Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 1 contract

Samples: Credit Agreement (Bedding Experts Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, the ~~Borrower~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that neither of the ~~Borrower~~ Borrowers may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Company or either of the Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the ~~Borrower~~ Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The ~~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~~ 11.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The ~~Borrower and each Lender~~ Borrowers also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant 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~~ 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 pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower~~an Assignee that is not then a Lender or an affiliate or Approved Fund thereof, by Details and the Administrative ~~Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons~~Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; 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 to by ~~the Borrower~~ Details and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 11.6, 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 Borrowers, 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~~ 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 the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such 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 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 ~~Loan~~Lender, ~~whether or not~~ the Loans made by such Lender shall be evidenced by a Note issued by the Borrowers, 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 Borrowers' obligations hereunder or under any Note. On or prior to the effective date of an Assignment and Acceptance, the Borrowers, at their 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 Borrowers (through the Administrative Agent), and the Borrowers agree thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) substantially in the ~~Register~~form of Exhibit F-3 (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 Borrowers prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.19(b). An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of ~~a Loan evidenced by a Note~~ such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~Note~~ Alternative Note(s) evidencing such ~~Loan~~Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed ~~Assignment~~ by) the Alternative Noteholder thereof, and ~~Assumption;~~ thereupon one or more new ~~Notes~~ Alternative Note(s) in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee(s). No assignment of an Alternative Note and the ~~old Notes~~ Obligations evidenced thereby shall be ~~returned by~~ effective unless it has been recorded in the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior noticeRegister. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 11.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything 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 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. 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~~2.20, ~~2.18~~ 2.21 and ~~2.19~~ 2.22 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.21, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by 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 or Delayed Draw Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EQ, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrower or, 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~~ Lender, Related Fund or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in~~ 5,000,000 as to the ~~case of any assignment of~~ Revolving Credit ~~Commitments~~Facility, ~~and~~ $~~1,000,000, in~~ 1,000,0000 as to the ~~case of any assignment of~~ Term ~~Loans~~ Loan Facility or the Delayed Draw 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 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, but shall be a ratable portion of each Facility so assigned. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.20, ~~2.18~~ 2.21 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. A list of current Lenders will be made available for any Lender who requests same while any amendment to this Agreement is pending. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note, Term Note and/or ~~applicable~~ Delayed Draw Term ~~Notes~~Note, as the case may be, of the assigning Lender) a new Revolving Credit Note, Term Note and/or ~~applicable~~ Delayed Draw Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment, Term Loans and/or Delayed Draw Term Loan Commitment ~~and/or applicable~~ and Delayed Draw Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment, Term Loan and/or Delayed Draw Term Loan Commitment ~~and/or~~ and Delayed Draw Term Loans, as the case may be, upon request, a new Revolving Credit Note, Term Note and/or Delayed Draw Term ~~Notes~~Note, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment, Term Loans and/or Delayed Draw Term Loan Commitment ~~and/or applicable~~ and Delayed Draw 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, or, in the case of a Lender which is a fund, to any holders of obligations owned or securities issued by such Lender or to any trustee for, or other representatives of, such holders. No such assignments creating security interest shall require the consent or approval of either the Administrative Agent or Borrower (provided, however, any absolute assignments do require such consent and approval as provided in this Section 10.6). (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

Samples: Credit Agreement (Pinnacle Entertainment Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that (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 Lender~~any 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. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, ~~2.18~~ 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 Participant~~Borrower’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~~From 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 thereof~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $~~5,000,000~~3,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a 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 Loans~~the “Assignor”) ~~shall have Commitments~~ and ~~Loans aggregating at least $5,000,000~~assignee Lender (the “Assignee”), ~~in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery,~~ (ii) acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (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 ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.16, ~~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 ~~Section~~Section 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 aggregated~~this 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (eg) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~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 Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (gi) Notwithstanding anything 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 amendment~~above. (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, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 ~~and~~ or 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by any Agent and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term ~~Loans, unless such assignment is to a Person that is a motion picture exhibitor~~ Loans after the termination or ~~an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent~~ expiration of the ~~Borrower), and (ii) in the case of any assignment of the Revolving Credit~~ Term Loan Commitments~~, the Issuing Lenders (which consent shall not be unreasonably withheld~~), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED (an "Assignment and Acceptance"), executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower,~~ Borrower or the Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000,~~ 1,000,000 (in the case of ~~any assignment~~ assignments in respect of ~~Revolving Credit Commitments, and~~ the Term Loan Facility) or $~~1,000,000,~~ 3,000,000 (in the case of ~~any assignment~~ assignments in respect of ~~Term Loans~~ the Revolving Credit Facility) (other ~~than~~ than, in each case, in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by the Borrower and the Administrative Agent~~ ) and, after giving effect ~~to such assignment~~thereto, the assigning Lender (if it shall retain any ~~Revolving Credit Commitment~~ Commitments or Loans) shall have Commitments and Loans aggregating at least $~~5,000,000,~~ 1,000,000 (in the case of ~~Revolving Credit Commitments, and~~ assignments in respect of the Term Loan Facility) or $~~1,000,000,~~ 3,000,000 (in the case of assignments in respect of the ~~Term Loans~~Revolving Credit Facility), in each case, unless otherwise agreed by the Borrower and the Administrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by ~~Section 10.6(c~~clause (c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Lehman Entity or (z) in the case of an Assignee which is already a 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

Samples: Credit Agreement (Brookdale Senior Living Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that neither of the ~~Borrower~~ Borrowers may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender 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 ~~Section~~Section (including the requirements of Section 2.18(d) or Section 2.18(e) as applicable, as though it were a Lender), and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrowers and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrowers, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the ~~Borrower~~ Borrowers and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or thereof, including any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by the Borrower and the Administrative Agent~~ ) and, after giving effect ~~to such assignment~~thereto, the assigning Lender (if it shall retain any ~~Revolving Credit Commitment~~ commitments or Loans) shall have ~~Commitments~~ commitments and Loans aggregating at least $~~5,000,000, in the case of Revolving Credit Commitments, and $~~1,000,000, in each case, unless otherwise agreed by the ~~case of~~ Borrowers and the ~~Term Loans~~Administrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers marked “canceled.” ”. The Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (x) in connection with an assignment by or to a ~~Barclays Entity~~Xxxxxx 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 ~~Borrower~~Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at ~~its~~ their own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement Closing~~ Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the ~~Borrower~~Borrowers, the option to provide to the ~~Borrower~~ Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the ~~Borrower~~ Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the ~~Borrower~~ Borrowers and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the ~~Borrower~~ Borrowers and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to ~~the~~ any Borrower may be disclosed only with ~~the~~ such Borrower’s 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 (Delek US Holdings, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that 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 ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the ~~Administrative Agent and so long as no Default or Event of Default has occurred and is continuing~~Borrower, the ~~Borrower~~ Agents and each Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheldLehman Entity), to an additional bank, financial institution or other ~~entity~~ xxxxxx (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower,~~ Borrower the ~~Administrative Agent~~ Agents or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.14, ~~2.18~~ 2.15 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Lehman Entity or (z) in the case of an Assignee which is already a 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

Samples: Credit Agreement (Gallipolis Care LLC)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender 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, increase such Participant's Commitment, release all or substantially all of ~~all Lenders pursuant~~ the Collateral or postpone the date of the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ If the Borrower receives written notice of any transfer to any 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 and during the continuance of an Event of Default, each such Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement 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, each such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; ~~provided~~ PROVIDED that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section~~Section and PROVIDED, ~~and provided, further~~FURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an ~~“Assignor”~~"ASSIGNOR") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ 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 E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; ~~provided~~ PROVIDED that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 1 contract

Samples: Credit Agreement (Dames & Moore Group)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any ~~Commitment~~ Credit-Linked Deposit Amount 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 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~~ in (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~~2.11, ~~2.18~~ 2.12 and ~~2.19~~ 2.13 with respect to its participation in the ~~Commitments~~ Credit-Linked Deposit Amount and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.12, 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~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the~~ Administrative Agent ~~or the Issuing Lenders~~ is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof or any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 500,000 (other than in the case of (i) assignments made within 30 days of the Closing Date for the purpose of consummating the primary syndication of the Credit-Linked Deposit Amount or (ii) an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ Credit-Linked Deposit Amounts and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.11, ~~2.18~~ 2.12, 2.13 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more Related Funds shall be ~~aggregated and for purposes~~ aggregated. Without the consent of the ~~minimum hold amounts~~Administrative Agent, the ~~Commitments~~ Credit-Linked Deposit Amount of any Lender shall not be released in connection with any assignment by such Lender, but shall instead be purchased by the relevant assignee and ~~Loans~~ continue to be held for application (to the extent not already applied) in accordance with Section 2.2 to satisfy such assignee's obligations in respect of ~~Related Funds~~ the aggregate then outstanding principal amount of the Loans. Each Lender agrees that, upon the effectiveness of any assignment by it of all or any portion of its Credit-Linked Deposit Amount, the corresponding portion of the assignor Lender's Applicable Percentage of the amount on deposit in the Credit-Linked Account shall be ~~aggregated~~deemed to have been transferred to the assignee. (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~~ Lenders, and the ~~Commitment of, and~~ principal amount of the Loans owing to, and the amount of the Credit-Linked Deposit Amount of, 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 recorded therein, and ~~any Notes evidencing such Loans recorded therein~~ relevant Applicable Percentage of the amounts on deposit in the Credit-Linked Account, for all purposes of this Agreement. Any assignment of any ~~Loan, whether~~ Loan or ~~not evidenced by a Note,~~ Credit-Linked Deposit Amount 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 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (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 (i) if the parties to such assignment shall electronically execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to the Administrative Agent in its sole discretion (which initially shall be Clearpar, LLC) the registration and processing fee shall be $500 and (ii) no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Xxxxxxx 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 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~~ Credit-Linked Deposit Amounts relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in ~~Loans and Notes~~Loans, 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~~ Credit-Linked Deposit Amount of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~10.6(g~~9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, ~~guarantee~~ 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~~ The provisions of this Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower, the Lenders, the Agents, all future holders of the Loans~~ parties hereto and their respective successors and ~~assigns~~assigns permitted hereby, except that (1) the Borrower may not assign or otherwise transfer (including through participation) any of its rights or obligations ~~under this Agreement~~ hereunder without the prior written consent of each Lender and the Controlling Party (and any attempted assignment or transfer by the Borrower without such consent shall be null and void), (2) the Subordinated Lender may not assign or otherwise transfer (including through participation) any of its rights or obligations hereunder without the prior written consent of Federal Reserve Bank of New York (and any attempted assignment or transfer by the Subordinated Lender without such consent shall be null and void), (3) the Senior Lender may not assign or otherwise transfer (including through participation) any of its obligations or rights hereunder without the prior written consent of the ~~Agents~~ Subordinated Lender (and ~~each Lender.~~ any attempted assignment or transfer by the Senior Lender without such consent shall be null and void), (b4) ~~Any Lender may,~~ the Controlling Party may not assign or otherwise transfer (including through participation) any of its rights or obligations hereunder without the prior written consent of the ~~Borrower,~~ Subordinated Lender (and any attempted assignment or transfer by the Controlling Party without such consent shall be null and void) and (v) Federal Reserve Bank of New York may not assign or otherwise transfer (including through participation) any of its rights or obligations as Managing Member or its Membership Interest in ~~accordance with applicable law, at~~ Borrower without the prior written consent of the Subordinated Lender (and any ~~time sell~~ attempted assignment or transfer by Federal Reserve Bank of New York without such consent shall be null and void). All assignments permitted hereunder shall be effected pursuant to ~~one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing~~ documentation reasonably satisfactory to ~~such Lender, any Commitment~~ the Controlling Party. From and after the date of ~~such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event~~ effectiveness of any ~~such sale by~~ assignment of the rights and obligations of a Lender hereunder, the assignee thereunder shall be a party hereto and have the rights and obligations of ~~a participating interest to a Participant, such Lender’s obligations~~ the assigning Lender under this Agreement (to the ~~other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for~~ extent of the ~~performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement~~ interest so assigned) 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 (to the extent of the interest so assigned) and, in to the ~~case~~ extent the entire amount of ~~an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement~~its Loans have been assigned or transferred, 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 ~~10.14)~~9.05. Notwithstanding ~~any provision of this Section~~the foregoing, ~~the consent of the Borrower~~ at no time shall ~~not~~ there 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 Registerthan 75 Lenders. 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 or the Controlling Party of ~~any Loan~~ rights 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 obligations under this Agreement ~~(all liability for which shall remain~~ that does not comply 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~~ 9.06 shall be null 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 amendmentvoid.

Appears in 1 contract

Samples: Credit Agreement

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a Loan, unless each of the Administrative Agent and ~~$1,000,000~~the Borrower otherwise consents to such lesser amount, ~~in the case of any~~ (ii) each partial assignment ~~of Term Loans (other than in the case of~~ shall be made as an assignment of a proportionate part of all ~~of a~~ the assigning Lender’s ~~interests~~ rights and obligations under this ~~Agreement), unless otherwise agreed by~~ Agreement with respect to the ~~Borrower~~ Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent ~~and~~an Assignment and Acceptance, ~~after giving effect~~ together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to ~~such assignment,~~ the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender and assignee Lender, (~~if it shall retain any Revolving Credit Commitment or Loans~~ii) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.13(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 10.5. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as ~~to Sections 2.17, 2.18~~ a sale by such Lender of a participation in such rights and ~~10.5~~ obligations in ~~respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision~~ accordance with paragraph (c) of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or any Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent ~~would require~~ requires the consent of ~~all Lenders~~ each Lender directly affected thereby pursuant to ~~Section 10.~~the proviso to the second sentence of Section 110.1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the written consent of ~~(i)~~ the Borrower, the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E,~~ Acceptance executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative ~~Agent~~ Agent, the Issuing Lender or the ~~Issuing Lenders~~ Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, ~~in the case of any~~ with respect to an assignment of Revolving Credit ~~Commitments~~Loans, and $1,000,000, in with respect to an assignment of Term Loans and, after giving effect thereto, the ~~case~~ Assignor shall have Commitments and Loans aggregating at least $5,000,000, with respect to an assignment of ~~any~~ Revolving Credit Loans, and $1,000,000, with respect to an assignment of Term Loans (in each case, other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.19, ~~2.18~~ 2.20 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing, provided that, after the occurrence and during the continuation of an Event of Default, the Borrower may identify, by written notice to the Administrative Agent (and the Administrative Agent shall promptly notify the Lenders), up to two banks, financial institutions or other entities who shall not be permitted to be an Assignee hereunder during the continuation of such Event of Default. For purposes of the minimum assignment or hold amounts set forth in this paragraph, multiple assignments to or by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Xxxxxx 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

Samples: Credit Agreement (K&f Industries Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, ~~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~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred~~, except~~ . Each Lender selling participations (other than the sale of participations to a Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the ~~extent~~ Borrower and the Administrative Agent of such ~~entitlement~~ participations and of the identity of the purchasers of such participations; provided that no delay or failure of such notice to ~~receive a greater amount results from~~ be so given shall affect the ~~adoption of, or a change in any Requirement~~ validity of ~~Law that occurs after the Participant acquired the applicable participation~~such sale. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register ~~to any Person~~ (including the identity of any Participant or any information relating to a Participant’s interest in any ~~Commitments~~ commitments, loans, 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 law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a Loan, unless each of the Administrative Agent and ~~$1,000,000~~the Borrower otherwise consents to such lesser amount, ~~in the case of any~~ (ii) each partial assignment ~~of Term Loans (other than in the case of~~ shall be made as an assignment of a proportionate part of all ~~of a~~ the assigning Lender’s ~~interests~~ rights and obligations under this ~~Agreement), unless otherwise agreed by~~ Agreement with respect to the ~~Borrower~~ Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent ~~and~~an Assignment and Acceptance, ~~after giving effect~~ together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to ~~such assignment,~~ the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender (~~if it shall retain any Revolving Credit Commitment or Loans~~the “Assignor”) ~~shall have Commitments~~ and ~~Loans aggregating at least $5,000,000~~assignee Lender (the “Assignee”), ~~in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery,~~ (ii) acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this paragraph (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 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. (d) Notwithstanding anything to the contrary contained in this Agreement, no assignment 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 foregoing Persons described in this clause (ii) of this Section 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 and participations in Letters of Credit and Swingline Loans in accordance with its Revolving Percentage. Notwithstanding the foregoing, in the event that any assignment ~~that occurs at~~ of rights and obligations of any ~~time when any Event~~ Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of ~~Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in~~ this paragraph, ~~multiple assignments to or by two or more Related Funds~~ then the assignee of such interest shall be ~~aggregated and~~ deemed to be a Defaulting Lender for all purposes of ~~the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~this Agreement until such compliance occurs. (df) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 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 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (eg) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fh) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (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 Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~Borrowers, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that neither of the ~~Borrower~~ Borrowers may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender 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 ~~Section~~Section (including the requirements of Section 2.18(d) or Section 2.18(e) as applicable, as though it were a Lender), and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof (other than a Defaulting Lender or an affiliate, Related Fund or Control Investment Affiliate thereof) or, with the consent of ~~(i)~~ the Borrowers and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided ~~that no such~~ 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~~ entity, other than a Loan Party or any Affiliate of a Loan Party (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EE (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative ~~Agent~~ 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 no such assignment to an Assignee (other than any Lender or any affiliate or thereof, including any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by the Borrower and the Administrative Agent~~ ) and, after giving effect ~~to such assignment~~thereto, the assigning Lender (if it shall retain any ~~Revolving Credit Commitment~~ commitments or Loans) shall have ~~Commitments~~ commitments and Loans aggregating at least $5,000,000, in each case, unless otherwise agreed by the ~~case of Revolving Credit Commitments,~~ Borrowers and ~~$1,000,000, in~~ the ~~case of the Term Loans~~Administrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers marked “canceled.” ”. The Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall update the Register on the First Amendment Effective Date to reflect the Revolving Credit Commitments and the Term Loans, in each case, of the Lenders after giving effect to this Agreement. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the ~~Borrower~~Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at ~~its~~ their own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note ~~and/or applicable Term Notes, as the case may be,~~ of the assigning Lender) a new Revolving Credit Note ~~and/or applicable Term Notes, as the case may be,~~ to the order of such Assignee in an amount equal to the Revolving Credit Commitment ~~and/or applicable Term Loans, as the case may be,~~ assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit ~~Commitment and/or Term Loans, as the case may be~~Commitment, upon request, a new Revolving Credit Note ~~and/or Term Notes, as the case may be,~~ to the order of the Assignor in an amount equal to the Revolving Credit Commitment ~~and/or applicable Term Loans, as the case may be,~~ retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement Closing~~ First Amendment Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the ~~Borrower~~Borrowers, the option to provide to the ~~Borrower~~ Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the ~~Borrower~~ Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the ~~Borrower~~ Borrowers and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the ~~Borrower~~ Borrowers and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to ~~the~~ any Borrower may be disclosed only with ~~the~~ such Borrower’s 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 (Delek US Holdings, Inc.)

Successors and Assigns; Participations and Assignments. (a) This ----------------------------------------------------------- Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such -------- participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 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~~2.12, ~~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 ~~2.18~~2.13, 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 (an “"Assignor”") may, in accordance with applicable -------- law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this -------- Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless -------- otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $C$5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment ~~need not~~ must be ratable as among the ~~Facilities~~Commitments. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation -------- of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of ~~$3,500 (treating multiple~~US$4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 1 contract

Samples: Credit Agreement (Global Payments Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time and such other interest as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said ~~Section,~~ Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative ~~Agent~~ 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 continuing~~Default, 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Administrative Agent, the ~~Administrative Agent~~ Issuing Lender or the ~~Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by ~~the Borrower and~~ such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any ~~Lender~~ Lender, Related Fund or any affiliate of a Lender or Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000~~2,000,000 (or, in the case of any ~~assignment of Revolving Credit Commitments~~Term Loans, ~~and~~ $1,000,000~~, 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~~Agent; provided further that, after giving effect to such assignment, the ~~assigning Lender (if it shall retain any~~ aggregate principal amount of such Assignor’s Revolving Credit Commitment or ~~Loans)~~ Revolving Credit Loans or Term Loans shall ~~have Commitments and Loans aggregating~~ be at least $~~5,000,000,~~ 2,000,000 (other than in the case of ~~Revolving Credit Commitments~~an assignment to a Related Fund or to an affiliate of such Assignor or of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and ~~$1,000,000, in~~ the ~~case of the Term Loans. Any such assignment need not be ratable as among the Facilities~~Administrative Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Revolving Credit Commitments and/or Revolving Credit Loans and/or Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.14, ~~2.18~~ 2.15 and ~~10.5 in~~ 10.5); provided however, if the Borrower or any Affiliate thereof shall be an Assignee, the Loans acquired by such Assignee shall, immediately upon such acquisition and without any further act or deed by such Assignee, the Borrower, the Administrative Agent or any other Person, be deemed cancelled and, with respect to an assignment of ~~the period prior~~ Term Loans to such ~~effective date and~~ Assignee pursuant to this Section ~~10.14~~10.6(c)~~. Notwithstanding any provision of this Section~~, the ~~consent~~ provisions of ~~the Borrower~~ Section 2.13 shall not ~~be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing~~apply. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more Related Funds shall be ~~aggregated and for~~ aggregated. For the purposes of the minimum ~~hold amounts, the Commitments~~ Revolving Credit Commitment and Loans ~~of Related Funds~~ to be held by any Assignor after giving effect to any assignment, such amounts shall be ~~aggregated~~aggregated in respect of each Lender and its affiliates or Related Fund, if any. (d) The Administrative Agent shall, on behalf of the Borrower, 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to any Agent or (z) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, 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 be~~Loan, upon request, a new ~~Revolving Credit~~ Note ~~and/or Term Notes, as the case may be,~~ to the order of the Assignor in an amount equal to the Revolving Credit Commitment ~~and/or applicable Term Loans, as the case may be,~~ retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement Closing~~ 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

Samples: Credit Agreement (Sba Communications Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) more Eligible Assignees all or ~~any part~~ a portion of its rights and obligations under this Agreement ~~pursuant~~ (including all or a portion of its Commitment and the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) of the assigning Lender subject to each such assignment (determined as of the date the Assignment and ~~Assumption, substantially in the form of Exhibit E, executed by~~ Acceptance with respect to such ~~Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders~~ assignment is ~~required pursuant to the foregoing provisions, by the Borrower and such other Persons) and~~ delivered to the Administrative ~~Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $5,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a Loan, unless each of the Administrative Agent and ~~$1,000,000~~the Borrower otherwise consents to such lesser amount, ~~in the case of any~~ (ii) each partial assignment ~~of Term Loans (other than in the case of~~ shall be made as an assignment of a proportionate part of all ~~of a~~ the assigning Lender’s ~~interests~~ rights and obligations under this ~~Agreement), unless otherwise agreed by~~ Agreement with respect to the ~~Borrower~~ Loan or the Commitment assigned and (iii) the parties to each assignment shall execute and deliver to the Administrative Agent ~~and~~an Assignment and Acceptance, ~~after giving effect~~ together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to ~~such assignment,~~ the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender and assignee Lender, (~~if it shall retain any Revolving Credit Commitment or Loans~~ii) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such assignee Lender is a Non-U.S. Lender, compliance by such Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except~~ 2.15, 2.16 and 10.5. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as ~~to Sections 2.17, 2.18~~ a sale by such Lender of a participation in such rights and ~~10.5~~ obligations in ~~respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision~~ accordance with paragraph (c) of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have 65 60 complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.. 66 61 (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) The Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~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~~ 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. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender -------- hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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~~law -------- 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such -------- assignment to an Assignee (other than any Lender or any affiliate ~~or 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 ~~Commitments~~Facility, 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 and~~Agent; 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 ~~Commitments~~Facility, 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 Loans~~Borrower and the Administrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the -------- recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” " The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s 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 Entity~~Lender or is an affiliate of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Lenders, 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 ~~Loans~~Loan, 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~~Loan, 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 ~~Loans~~Loan, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Sba Communications Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that (i) the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each ~~Lender~~Lender and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Agreement. (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. 1~~10.1 without the consent of such Participant. The Borrower agrees that ~~if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default,~~ each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff provided under Section 10.7(b) in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of of, and subject to the requirements of, Sections ~~2.17~~2.19, ~~2.18~~ 2.20, 2.21 and ~~2.19~~ 2.23 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater ~~amount~~ payment results from ~~the adoption of, or~~ a ~~change~~ Change in ~~any Requirement of~~ Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ on which it enters the name and address of each Participant and the principal amounts of (and stated ~~interest~~interest on) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register ~~to any Person~~ (including the identity of any Participant or any information relating to a Participant’s 's interest in any ~~Commitments~~ commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, 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

Samples: Credit Agreement (National CineMedia, Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~REIT, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 or 2.18 ~~and 2.19~~ with respect to its participation in the Revolving Credit Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the ~~Administrative Agent~~ Borrower and ~~so long as no Default or Event~~ the Agents and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the ~~Administrative Agent~~ Agents or the Issuing ~~Lenders~~ Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with the Revolving Credit Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.16, ~~2.18~~ 2.17 and 10.5 in respect of the period prior to such effective ~~date and~~ date). In the event that Borrower fails to respond within five Business Days after the receipt of a request to approve an assignment pursuant to this Section ~~10.14~~10.6(c), the Borrower shall be deemed to have consented to such assignment. Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Credit Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. Each Lender that sells a participation, acting for this purpose as a non-fiduciary agent (solely for tax purposes) shall maintain a register on which it enters the name and address of each participant and the principal amounts of each participant’s interest in the Revolving Credit Commitments, Loans and other Obligations held by it (the “Participant Register”). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such interest in the Revolving Credit Commitments, Loans and other Obligations as the owner thereof for all purposes of this Agreement notwithstanding any notice to the contrary. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment~~) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity~~), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note ~~and/or applicable Term Notes, as the case may be,~~ of the assigning Lender) a new Revolving Credit Note ~~and/or applicable Term Notes, as the case may be,~~ to the order of such Assignee in an amount equal to the Revolving Credit Commitment ~~and/or applicable Term Loans, as the case may be,~~ assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment ~~and/or Term Loans, as the case may be,~~ upon request, a new Revolving Credit Note ~~and/or Term Notes, as the case may be,~~ to the order of the Assignor in an amount equal to the Revolving Credit Commitment ~~and/or applicable Term Loans, as the case may be,~~ retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Revolving Credit Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of ~~all Lenders~~ the Lender from which the Participant purchased its interest pursuant to Section ~~10. 1~~lO.l(i) or (ii). The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of each Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that ~~no such~~ the consent of the Borrower need not be obtained with respect to any assignment of Tranche B Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof or any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ l,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and~~Agent; and provided further that, ~~after giving effect to such assignment~~notwithstanding the foregoing, ~~the assigning Lender~~ (~~if it shall retain~~ i) any ~~Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case~~ assignment of Revolving Credit ~~Commitments,~~ Loans and ~~$1,000,000, in the case~~ Revolving Credit Commitments may be made only to a commercial bank or any other financial institution whose senior unsecured debt rating is at least A-2 by S&P and at least P-2 by Moody's and (ii) no assignment shall be permitted to a competitor of ~~the Term Loans~~xxx Xxxrower or to any entity (other than a financial institution) that is an affiliate or related entity of any such competitor. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500~~ 3, 500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of (A) an Assignee which is already a Lender or is a Control Investment Affiliate or Related Fund of a Lender or a Person under common management with an a Lender or (B) any assignment made by the Syndication Agent or ~~to a Barclays Entity~~any of its Affiliates), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Tranche B Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Tranche B Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Tranche B Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Tranche B Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Tranche B Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, if at any ~~Lender~~ time Bank of America assigns all of its Commitments and Loans pursuant to subsection (~~a “Granting Lender”~~c) ~~may grant to a special purpose funding vehicle (an “SPC”)~~above, ~~identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower~~Bank of America may, ~~the option to provide~~ upon 30 days' notice to the Borrower and the Lenders, resign as Issuing Lender. In the event of any such resignation as Issuing Lender, the Borrower shall be entitled to appoint from among the Lenders a successor Issuing Lender hereunder; provided, however, that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank of America as Issuing Lender. If Bank of America resigns as Issuing Lender, it shall retain all the rights and obligations of the Issuing Lender hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as Issuing Lender and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 3.3(c)). (h) Notwithstanding anything to the contrary contained herein, any Lender that is a fund may create a security interest in all or any ~~part~~ portion of ~~any Loan that such Granting Lender would otherwise be obligated~~ the Loans owing to ~~make~~ it and the Notes, if any, held by it to the ~~Borrower pursuant to this Agreement;~~ trustee for holders of obligations owed, or securities issued, by such fund as security for such obligations or securities, provided that unless and until such trustee actually becomes a Lender in compliance with the other provisions of this Section 10.6, (i) ~~nothing herein~~ no such pledge shall ~~constitute a commitment by~~ release the pledging Lender from any ~~SPC to make any~~ of its obligations under the Loan Documents and (ii) ~~if an SPC elects not to exercise~~ such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent trustee shall not be ~~unreasonably withheld)~~ entitled to exercise any ~~financial institutions providing liquidity and/or credit support to or for~~ of the ~~account~~ rights of a Lender under the Loan Documents even though such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information trustee may have acquired ownership rights with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentpledged interest through foreclosure or otherwise.

Appears in 1 contract

Samples: Credit Agreement (Perkinelmer Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ no Borrower may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by the ~~Agents~~ Subsidiary Borrower or the Canadian Borrower as permitted by Section 7.3) and ~~each Lender~~Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23. (b) Any Lender other than any Conduit Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions or other entities~~ Eligible Assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender ~~hereunder and under the other Loan Documents~~hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement and the other Loan Documents~~Agreement, and the ~~Borrower~~ Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and the other Loan Documents~~Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~any Loan Document~~this Agreement, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such ~~Participant~~ Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be ~~deemed~~ required to ~~have agreed to share~~ deal directly with one another in respect of, the ~~Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if~~ participation of such ~~Participant were a Lender hereunder~~Participant. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, ~~except~~ no Loan Party shall be required to ~~the extent such entitlement to receive a~~ pay any greater amount ~~results from~~ pursuant to Section 2.18 as a result of the ~~adoption of, or~~ transfer of a ~~change in any Requirement of Law that occurs after the~~ participation to a Participant ~~acquired the applicable participation~~than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~Commitments~~ commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury ~~Regulations~~Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with the Canadian Borrower for purposes of the Income Tax Act (Canada). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~may~~shall be permitted to assign, in accordance with applicable law, ~~at any time~~ all or a portion of its Loans and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving ~~Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld),~~ Commitments hereunder to an ~~additional bank, financial institution or other entity~~ Eligible Assignee (an “Assignee”) ~~all~~ with the consent, not to be unreasonably withheld, of (a) the Parent Borrower, unless (i) the Assignee is a Lender or ~~any part~~ a Lender Affiliate or (ii) an Event of ~~its rights~~ Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and ~~obligations under this Agreement~~ is continuing; provided that such consent shall be deemed given if the Parent Borrower has not responded within 15 days of a written request from the Administrative Agent for such consent, (b) the Administrative Agent, and (c) each Issuing Lender, in each case pursuant to an Assignment and Assumption, ~~substantially in the form of Exhibit E,~~ executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register; provided~~ relevant Register (it being understood and agreed that no such ~~assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof)~~ Assignee, if it shall not be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender~~’s interests under this Agreement)~~, ~~unless otherwise agreed by the Borrower and~~ shall deliver to the Administrative Agent ~~and~~an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, ~~after giving effect~~ including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the ~~assigning Lender (if it shall retain~~ cost under this Agreement to any ~~Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000,~~ Borrower in the ~~case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities~~foreseeable future. Upon such execution, delivery, acceptance and ~~recording~~recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the ~~Borrower shall not be required for~~ Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (~~the~~ each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in ~~the~~ each Register shall ~~be conclusive~~constitute prima facie evidence of the same, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~the~~ each Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; , and thereupon one or more new Notes ~~in the same aggregate principal amount shall~~ may be issued to the designated Assignee, ~~and the old Notes shall be returned~~ if requested by ~~the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to~~ such ~~Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice~~Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than (x) in the case of an assignment of Revolving Commitments, US$5,000,000 or (y) in the case of an assignment of Loans, US$5,000,000, C$5,000,000 or €5,000,000, as applicable, in each case unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and Assumption in conformity with Section 10.6(c), executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of ~~$3,500 (treating multiple~~US$3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the relevant Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fg) For avoidance of ~~doubt,~~ doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit ~~assignments creating security interests in Loans and Notes~~the granting of security, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) ~~Notwithstanding anything to the contrary contained herein~~above. (i) Each Borrower, ~~any~~ each Lender ~~(a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to~~ and the Administrative Agent ~~and the Borrower~~each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~of, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, ~~without~~ with the consent of the Administrative Agent and the Borrower, which consent will not be unreasonably withheld (provided that no consent from the Administrative Agent or the Borrower shall be required at any time after the occurrence of a Bankruptcy Event), in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents; provided, however, that, without the prior written consent of the Borrower and the Administrative Agent, (i) each such sale shall include an aggregate principal amount of not less than $1,000,000 and (ii) no sale shall result in a Lender holding less than $1,000,000 in aggregate principal amount of the Loans (other than in the case of a sale of all of a Lender’s interests under this Agreement). In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 109. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17, 2.18~~ 2.10 and ~~2.19~~ 2.11 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.11, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ Affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing~~the Borrower, ~~the Borrower (which~~which consent, in each case, shall not be unreasonably withheld or ~~delayed)~~ delayed (provided that (i) no such consent need be obtained ~~with respect to~~ by any ~~assignment~~ Farallon Entity for a period of ~~Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require~~ 180 days following the ~~consent of the Borrower),~~ Original Closing Date and (ii) in no consent from the ~~case~~ Borrower or Administrative Agent shall be required at any time after the occurrence of ~~any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld~~a Bankruptcy Event), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EJ (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Agents is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that no~~ that, without the prior written consent of the Borrower and the Administrative Agent, (i) each such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund~~ Affiliate thereof) shall be include an assignment of not less than $1,000,000 in aggregate principal amount and (ii) no such assignment shall result in an Assignor holding less than $1,000,000 in aggregate principal amount of ~~less than $5,000,000, in~~ the ~~case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term~~ Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.10, ~~2.18~~ 2.11 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall furnish the Borrower a copy of the Register and the notice information for each Lender, as requested by the Borrower from time to time. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Farallon Entity or (z) in the case of an Assignee which is already a Lender or is an Affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the ~~Revolving Credit Note and/or~~ applicable ~~Term Notes, as the case may be,~~ Notes of the assigning Lender) a new ~~Revolving Credit~~ Note ~~and/or applicable Term Notes, as the case may be,~~ or Notes to the order of such Assignee in an amount equal to the ~~Revolving Credit Commitment and/or~~ applicable ~~Term Loans, as the case may be,~~ Loans assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained ~~a Revolving Credit Commitment and/or Term~~ any Loans, as the case may be, upon request, a new ~~Revolving Credit Note and/or Term Notes, as the case may be,~~ Notes to the order of the Assignor in an amount equal to the ~~Revolving Credit Commitment and/or applicable Term Loans, as the case may be,~~ Loans retained by it hereunder. Such new Note or ~~Notes~~ Notes, with respect to the Term Loans, shall be dated the ~~Restatement~~ Original Closing ~~Date~~ Date, and, with respect to the Advances, shall be dated the Closing Date, and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~10.6(g~~9.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Mission Resources Corp)

Successors and Assigns; Participations and Assignments. (a) This Loan Agreement shall ~~be binding upon and~~ inure to the benefit of the ~~Parent, the Borrower, the Lenders, the Agents, all future holders~~ respective successors and permitted assigns of the ~~Loans~~ parties hereto and of the Related Parties and other indemnified Persons hereunder and their respective successors and permitted assigns, and the obligations and liabilities assumed in this Loan Agreement by the parties hereto shall be binding upon their respective successors and permitted assignees, except that ~~the Borrower~~ (i) except as permitted under Section 9.03, no Loan Party may ~~not~~ assign or otherwise transfer any of its rights or obligations ~~under this Agreement~~ hereunder without the prior written consent of each Lender, and any attempted assignment or transfer by any Loan Party without such consent shall be null and void, and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 12.06. Nothing in this Loan Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section 12.06) and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the Lenders and the other Secured Parties) any legal or equitable right, remedy or claim under or by reason of this Loan Agreement. Notwithstanding anything to the contrary herein, (a) any Lender shall be permitted to pledge or grant a security interest in all or any portion of such Lender’s rights hereunder including, but not limited to, any Loans (without the consent of, or notice to or any other action by, any other party hereto) to secure the obligations of such Lender or any of its Affiliates to any Person providing any loan, letter of credit or other extension of credit to or for the account of such Lender or any of its Affiliates and (b) the Agents ~~and each Lender~~shall be permitted to pledge or grant a security interest in all or any portion of their respective rights hereunder or under the other Loan Documents, including, but not limited to, rights to payment (without the consent of, or notice to or any other action by, any other party hereto), to secure the obligations of such Agent or any of its Affiliates to any Person providing any loan, letter of credit or other extension of credit to or for the account of such Agent or any of its Affiliates. (b) Subject to the conditions set forth in Section 12.06(b)(i) below, any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Loan Agreement (including all or a portion of its Commitments and the Loans at the time owing to it); provided that, except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, (x) such Lender shall have provided the Borrower with at least five (5) Business Days’ prior written notice of the proposed assignment or participation, including the amount thereof and the proposed assignee or participant, and (y) the Borrower shall have the right for five (5) Business Days following such notice provide an irrevocable written offer to purchase all of the rights and obligations that will be the subject of such proposed assignment or participation (so long as (A) such purchase is made at par value as to such rights and obligations, (B) such purchase is actually consummated within five (5) Business Days of the Borrower providing such irrevocable written offer and (C) the Borrower, immediately upon consummating such purchase, permanently cancels such rights and obligations (which rights and obligations include, for the avoidance of doubt, the Loans such Lender proposed to assign or participate and the Liens securing such Loans); and (i) Assignments by Lenders shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, or an assignment of the entire remaining amount of the assigning Lender’s Commitments or Loans, the amount of the (i) Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $500,000, unless the Administrative Agent otherwise consents, which consent shall not be unreasonably withheld, delayed, conditioned or burdened; provided, however, that contemporaneous assignments to a single assignee made by affiliated Lenders or related Approved Funds, and contemporaneous assignments by a single assignor to affiliated Lenders or related Approved Funds, shall in each case be aggregated for purposes of meeting the minimum assignment amount requirements stated above; (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Loan Agreement as to the Loans or Commitments so assigned; provided that this paragraph shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect its Commitments or Loans; (C) 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 all requested “know your customer” documentation required by regulatory authorities under applicable anti-money laundering rules and regulations, including, without limitation, the Patriot Act; provided that only one such fee shall be payable in connection with simultaneous assignments to two or more Approved Funds; and (D) no assignments may be made (i) to a Permitted Holder or an Affiliate of a Permitted Holder, (ii) except as described in proviso to Section 12.06(b)(i) above (and to the extent immediately and permanently canceled), to a Loan Party or an Affiliate of a Loan Party or (iii) to any natural person, and any such assignment described in the foregoing clauses (i) through (iii) shall be null and void. (ii) Subject to acceptance and recording thereof pursuant to Section 12.06(b)(iv), from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Loan Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Loan Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender’s rights and obligations under this Loan Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.06, 2.07, 4.04 and 12.05 to the extent of any amounts owed to such Lender under any of such provisions). Any assignment or transfer by a Lender of rights or obligations under this Loan Agreement that does not comply with this Section 12.06 shall be treated for purposes of this Loan Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 12.06(c). (iii) The Administrative Agent, acting solely as a non-fiduciary agent of the Borrower for tax purposes and solely with respect the actions described in this Section 12.06(b)(iii), shall maintain at one of its offices in the United States a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The Register shall contain the name and address of each Lender and the lending office through which each Lender acts under this Loan Agreement. The entries in the Register shall be conclusive absent manifest error, and the Loan Parties, the Agents and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Loan Agreement, notwithstanding notice to the contrary. The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection by the Borrower and any Lender (and any other Person to the extent necessary to cause the Loans to be maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code) at any reasonable time and from time to time on any Business Day upon reasonable prior written notice; provided that no Lender shall, in such capacity, have access to or be otherwise permitted to review any information in the Register other than information with respect to such Lender unless otherwise agreed by the Administrative Agent in its sole discretion. This Section 12.06(b)(iii) shall be construed such that the Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the Code. (iv) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the processing fee, any requested “know-your-customer” documents, and any written consent to such assignment required by Section 12.06(b)(i), the Administrative Agent shall accept such Assignment and Acceptance and record the information contained therein in the Register. No assignment shall be effective for purposes of this Loan Agreement unless and until it has been recorded in the Register as provided in this paragraph. (c) Any Lender may, without the consent of the ~~Borrower~~Borrower or the Agents, ~~in accordance with applicable law, at any time~~ sell participations to one or more ~~banks, financial institutions~~ banks or other entities (each, a “Participant”) ~~participating interests~~ in ~~any~~ all or a portion of such Lender’s rights and obligations under this Loan Agreement (including all or a portion of its Commitments and the Loans 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, it); provided that (A) such Lender’s obligations under this ~~Agreement to the other parties to this~~ Loan Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance ~~thereof~~of such obligations, ~~such Lender shall remain~~ and (C) the ~~holder of any such Loan for all purposes under this Agreement~~ Borrower, the Agents and the other ~~Loan Documents, and the Borrower and the Agents~~ Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Loan Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Loan Agreement and ~~the other Loan Documents. In no event shall any Participant under any such participation have any right~~ to approve any ~~amendment~~ amendment, modification or waiver of any provision of this Loan Agreement or any other Loan Document~~, or any consent to any departure by any Loan Party therefrom, except to the extent~~ ; provided that such ~~amendment~~agreement or instrument may provide that such Lender will not, ~~waiver or consent would require~~ without the consent of ~~all Lenders pursuant~~ the Participant, agree to any amendment, modification or waiver described in Sections 12.01(b)(i), 12.01(b)(ii), 12.01(b)(iii) or 12.01(b)(iv). Subject to Section ~~10. 1. The~~ 12.06(c)(i), 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~~2.06, ~~2.18~~ 2.07 and ~~2.19 with respect~~ 4.04 to ~~its participation in~~ the ~~Commitments and the Loans outstanding from time to time~~ same extent as if ~~such~~ it were a Lender and had acquired its interest by assignment pursuant to Section 12.06(b). To the extent permitted by Applicable Law, each Participant also shall be entitled to the benefits of Section 12.09(b) as if it were a Lender; provided ~~that, in the case of Section 2.18,~~ that such Participant ~~shall have complied with the requirements of said Section, and provided, further, that no~~ agrees to be subject to Section 12.09(a) as if it were a Lender. (i) A Participant shall not be entitled to receive any greater ~~amount pursuant to any such Section~~ payment under Sections 2.06, 2.07 or 4.04 than the ~~transferor~~ applicable Lender would have been entitled to receive in with respect ~~of the amount of~~ to the participation ~~transferred by such transferor Lender~~ sold to such Participant. The Borrower agrees that each Participant ~~had no such transfer occurred, except~~ shall be entitled to the ~~extent such entitlement~~ benefits of Section 4.04 so long as the documentation required by Section 4.04(f) is delivered by the participant 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.~~ participating Lender. (ii) 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~~ at one of its offices in the United States a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in ~~the~~ such Lender’s 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~~ each Participant Register shall be conclusive absent manifest error, and ~~such~~ the applicable Lender shall treat each ~~Person~~ person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Loan Agreement notwithstanding any notice to the contrary. ~~For~~ No Lender shall have any obligation to disclose all or any portion of the ~~avoidance~~ Participant Register (including the identity of ~~doubt~~any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under United States Treasury Regulations Section 5f.103-1(c). The Administrative Agent ~~(in its capacity as Administrative Agent)~~ shall have no responsibility for maintaining any Participant Register, and any notices or other documents required to be delivered by the Loan Parties shall be deemed to be delivered to 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 upon actual delivery to the ~~foregoing provisions, by~~ Lender that sold 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 participation 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 aggregatedParticipant. (d) ~~The Administrative Agent shall~~Nothing herein is intended to prevent, ~~on behalf~~ impair, limit or otherwise restrict the ability of ~~the Borrower, maintain at~~ a Lender to collaterally assign or pledge all or any portion of its ~~address referred to~~ interests 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~~ the other rights and benefits under the Loan Documents to an unaffiliated third party lender of such ~~Loans recorded therein for all purposes~~ Lender (each such Person, a “Collateral Assignee”); provided that unless and until the Borrower receives notification from a Collateral Assignee of ~~this Agreement. Any~~ such assignment ~~of any Loan, whether or not evidenced by a Note, shall~~ directing payments to 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 to 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~~ Collateral Assignee, ~~and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection~~ any payment made by the Borrower ~~or any~~ for the benefit of such Lender (in accordance with ~~respect to any entry relating to such Lender~~the terms of the Loan Documents shall satisfy the Borrower’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 obligations thereunder to the ~~Administrative Agent~~ extent of ~~a registration~~ such payment. Any such Collateral Assignee, upon foreclosure of its security interests in the Loans pursuant to the terms of such assignment and ~~processing fee~~ in accordance with Applicable Law, shall succeed to all the interests 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~~ deemed to be a Lender, with ~~an assignment by or to a Barclays Entity)~~all the rights and benefits afforded thereby, and ~~the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee~~ such transfer shall ~~already~~ not be deemed to be a ~~Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment~~ transfer for purposes of 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~~ otherwise subject 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) 12.06. 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~~ Lender shall ~~survive the termination of this Agreement) that, prior to the date that is one year~~ remain responsible for all obligations and ~~one day after the payment in full of all outstanding commercial paper~~ liabilities arising hereunder or ~~other indebtedness of any SPC, it will not institute against, or join~~ under any other ~~Person in instituting against~~Loan Document, ~~such SPC any bankruptcy~~and, 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 except as otherwise expressly set forth in any ~~Loans~~ applicable pledge or assignment, nothing herein is intended or shall be construed to ~~the Granting Lender,~~ impose any obligations upon 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 constitute an assumption by 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 amendmentCollateral Assignee thereof.

Appears in 1 contract

Samples: Loan Agreement (Phi Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, ~~2.18~~ 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 Participant~~Borrower’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 thereof~~Agent) shall not be ~~in an aggregate principal amount of~~ less than $~~5,000,000~~3,000,000, in the case of any assignment of ~~Revolving Credit Commitments~~a 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 Loans~~the “Assignor”) ~~shall have Commitments~~ and ~~Loans aggregating at least $5,000,000~~assignee Lender (the “Assignee”), ~~in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery,~~ (ii) acceptance and ~~recording~~recording thereof by the Administrative Agent pursuant to paragraph (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 ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.16, ~~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 ~~Section~~Section 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 aggregated~~this 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (eg) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~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 Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (gi) Notwithstanding anything 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 amendment~~above. (j) [Reserved].

Appears in 1 contract

Samples: 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~~ 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. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ 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 ~~Assumption~~Acceptance (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 Persons~~Borrower) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required 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 ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the Borrower marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where~~ 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 Person~~Borrower 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 Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the 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 Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law~~. (g~~; 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 (i~~Sections 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 ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver ~~or consent would require 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 ~~2.17~~2.12, ~~2.18~~ 2.13 and ~~2.19~~ 2.14 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.13, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative ~~Agent and, after giving effect to such assignment~~Agent. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilitiesany. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 9.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each Loan Party, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender other than any Conduit Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an ~~additional~~ Eligible Assignee or to any other bank, financial institution or other entity approved by the Borrower and the Administrative Agent (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~1,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Samples: 364 Day Credit Agreement (Agl Resources Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent,~~ the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 ~~and~~ or 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the written consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit ED (an "Assignment and Acceptance"), executed by such Assignee and such Assignor (and, where the consent of the Borrower, 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 $~~5,000,000~~3,000,000 (other than, in ~~the case of any assignment of Revolving Credit Commitments~~each case, ~~and $1,000,000, in the case of any assignment of Term Loans (other than~~ in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by the Borrower and the Administrative Agent~~ ) and, after giving effect ~~to such assignment~~thereto, the assigning Lender (if it shall retain any ~~Revolving Credit Commitment~~ Commitments or Loans) shall have Commitments and Loans aggregating at least $~~5,000,000~~3,000,000, in each case, unless otherwise agreed by the ~~case of Revolving Credit Commitments,~~ Borrower and ~~$1,000,000, in~~ the ~~case of the Term Loans~~Administrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by ~~Section 10.6(c~~clause (c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be ~~payable~~ payable, (y) in connection with an assignment by or to a ~~Barclays Entity~~Lehman Entity or (z) in the case of an Assignee which is already a 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 Notes~~Swing Line Note, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or ~~applicable Term Notes~~Swing 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 Notes~~Swing 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

Samples: Credit Agreement (Brookdale Senior Living Inc.)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~5,000,000 (or, in the case of ~~any assignment of Revolving Credit Commitments~~the Tranche B Term Facility, ~~and~~ $1,000,000), in ~~the~~ each case ~~of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) The Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ 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 ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent and ~~so long as no Default or Event~~ the written consent of ~~Default has occurred and is continuing,~~ the ~~Borrower~~ Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by the Administrative Agent or any of its Affiliates and (y) the consent of the Borrower need not be obtained with respect to any assignment if an Event of ~~Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment~~ Default shall ~~require the consent of the Borrower),~~ have occurred and ~~(ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not~~ be ~~unreasonably withheld~~continuing), to an additional bank, financial institution or other entity that is not a competitor of the Borrower or its Subsidiaries (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that ((i) no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000~~2,500,000 and (ii) after giving effect thereto, the assigning Lender shall have Commitments and Loans aggregating at least $2,500,000, unless otherwise agreed by the Borrower and the Administrative Agent (in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (~~other than in the case of an assignment of all of a Lender’s interests under ~~this Agreement~~the Facility), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.15, ~~2.18~~ 2.16 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by or to ~~or by~~ two or more Related ~~Funds shall~~ Funds, or to two or more funds that will be ~~aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds after giving effect to such assignments, shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds, or to two or more funds that will be Related Funds after giving effect to such assignments, as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the ~~Revolving Credit~~ Note ~~and/or applicable Term Notes, as the case may be,~~ of the assigning Lender) a new ~~Revolving Credit~~ Note ~~and/or applicable Term Notes, as the case may be,~~ to the order of such Assignee in an amount equal to the ~~Revolving Credit~~ Commitment ~~and/or applicable Term Loans, as the case may be,~~ assumed ~~or acquired~~ by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a ~~Revolving Credit Commitment and/or Term Loans, as the case may be~~Commitment, upon request, a new ~~Revolving Credit~~ Note ~~and/or Term Notes, as the case may be,~~ to the order of the Assignor in an amount equal to the ~~Revolving Credit~~ Commitment ~~and/or applicable Term Loans, as the case may be,~~ retained by it hereunder. Such new Note ~~or Notes~~ shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.07(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.13, ~~2.18~~ 2.14 and ~~2.19~~ 2.15 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of Section ~~2.18~~2.14, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register~~Register (as defined below); provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, and after giving effect to such assignment, such assigning Lender shall have Commitments and Loans in ~~the~~ an aggregate amount of at least $5,000,000 in each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000,~~ described in ~~the case of any assignment of Term Loans (other than~~ this sentence except in the case of an assignment of all of a Lender’s interests under this Agreement). For purposes of the proviso contained in the preceding sentence, ~~unless otherwise agreed by~~ the ~~Borrower~~ amount described therein shall be aggregated in respect of each Lender and ~~the Administrative Agent and~~its Lender Affiliates, ~~after giving effect~~ if any. The Assignee shall purchase, at par, all Loans and pay all accrued interest and other amounts owing to such ~~assignment,~~ Assignor under this Agreement on or prior to the ~~assigning Lender (if it shall retain~~ date of assignment for any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment ~~need not be ratable as among the Facilities~~pursuant to Section 2.17. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 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 acceleration of the Obligations. Notwithstanding the foregoing, any Conduit Lender may assign at any time ~~when any Event of Default shall have occurred and be continuing. For purposes~~ to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 9.06(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.02 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~9.06(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ 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 9.06 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) The Borrower, ~~identified as such in writing from time to time by the Granting~~ each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

Samples: Credit Agreement (Federal Express Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders (or each affected Lender, to the extent the affirmative vote of the Lender from which such Participant acquired its participation would be required) pursuant to ~~Section 10.~~Section 110.1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the 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 for any assignment by the Administrative 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 or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower,~~ Borrower or the Administrative Agent ~~or the Issuing Lenders~~ 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~~ 2,500,000 with respect to the ~~case of any assignment of~~ Revolving Credit ~~Commitments~~Facility, and $~~1,000,000~~1,000,000 with respect to the Term Loan Facility (in each case, ~~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 LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon ~~such~~ the execution, delivery, acceptance and ~~recording~~recording of any Assignment and Acceptance, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections~~ Section 2.17, ~~2.18~~ 2.18, 2.19 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (x) in connection with an assignment by or to the Administrative Agent or (y) in the case of an Assignee which is already a ~~Barclays Entity~~Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ 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~~Note, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or ~~applicable~~ Term ~~Notes~~Note, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or ~~applicable~~ Term ~~Loans~~Loan, 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~~Loan, as the case may be, upon request, a new Revolving Credit Note and/or Term ~~Notes~~Note, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or ~~applicable~~ Term ~~Loans~~Loan, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In 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~~ 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~~paragraph (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 (Serologicals Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~REIT, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 1011. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 11.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower, the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the ~~Borrower~~ Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or and the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement)) and, the applicable Assignor (if it shall retain any Commitment or Loans) shall have a Commitment (or in the case the Commitments have been terminated, Loans) of at least $1,000,000, unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.14, ~~2.18~~ 2.15 and ~~10.5~~ 11.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” ”. The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.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 ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Agent, all future holders of the ~~Loans~~ Notes and their respective successors and assigns, except that the Borrower may 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~~any 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 ~~Documents~~Documents 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 ~~Agreement~~Agreement 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 ~~Section~~subsection and PROVIDED, ~~and provided, further~~FURTHER, 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 ~~Assumption~~Acceptance, 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 provisions~~an Affiliate thereof, by the ~~Borrower and such other Persons~~Agent) 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 thereof~~ii) ~~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 Facilities~~a direct Lender. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Eligible Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a ~~Lender~~ Lender, hereunder with ~~Commitments and/or Loans~~ a Commitment as set forth therein, and (y) the ~~Assignor~~ assigning Lender thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement and 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 shall~~Agent, 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 ~~Agreement~~Agreement and the other Loan Documents, notwithstanding any notice to the contrary. Any assignment of any ~~Loan, whether~~ Loan or other obligation hereunder not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (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 Person~~the Agent) together with payment by the Eligible Assignee to the ~~Administrative~~ Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the ~~acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative~~ Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to 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 Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable ~~law~~law 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~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 9.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant~~ it were a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said ~~Section~~Section and, ~~and~~ provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary. For the avoidance~~ validity of ~~doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~such sale. (c) Any Lender ~~(an “Assignor”) may, in accordance with applicable law, at any time and from time to time~~ may assign to ~~any Lender~~ one or ~~any Affiliate~~ more Eligible Assignees all or ~~Related Fund thereof or, with~~ a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment or the ~~consent of~~ Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment or the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender, the aggregate amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000, unless each of the Administrative Agent ~~and~~ and, so long as no ~~Default or~~ Event of Default has occurred and is continuing, the Borrower otherwise consents (~~which, in~~ each ~~case, shall~~ such consent not to be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), ~~and~~ (ii) ~~in the case of any~~ each partial assignment shall be made as an assignment of ~~the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any~~ a proportionate part of ~~its~~ all the assigning Lender’s rights and obligations under this Agreement ~~pursuant~~ with respect to ~~an Assignment and Assumption, substantially in~~ the ~~form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent~~ Loan or the ~~Issuing Lenders is required pursuant~~ Commitment assigned and (iii) the parties to ~~the foregoing provisions, by the Borrower~~ each assignment shall execute and ~~such other Persons) and delivered~~ deliver to the Administrative Agent ~~for its~~ an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and the Eligible Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an administrative questionnaire. Upon (i) the execution and delivery of the Assignment and Acceptance by the assigning Lender and assignee Lender, (ii) acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed thereof by ~~the Borrower and~~ the Administrative Agent ~~and~~pursuant to paragraph (c) of this Section, ~~after giving effect~~ (iii) consent thereof from the Borrower to the extent required pursuant to this clause (c) and (iv) if such ~~assignment~~assignee Lender is a Non-U.S. Lender, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any compliance by such ~~assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording~~Person with Section 2.15(d), from and after the effective date ~~determined pursuant to such~~ specified in each Assignment and ~~Assumption~~Acceptance, ~~(x)~~ the Eligible Assignee thereunder shall be a party hereto and, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender ~~hereunder with Commitments and/or Loans as set forth therein~~under this Agreement, and ~~(y)~~ the ~~Assignor~~ assigning Lender thereunder shall, to the extent ~~provided in~~ of the interest assigned by such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of ~~an Assignor~~the assigning Lender’s rights and obligations under this Agreement, such ~~Assignor~~ Lender shall cease to be a party ~~hereto~~hereto but shall continue to be entitled to the benefits of Sections 2.14, ~~except as to Sections 2.17~~2.15, ~~2.18~~ 2.16 and ~~10.5 in respect of the period prior to such effective date and Section 10.14~~9.5). ~~Notwithstanding any provision~~ Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (b) of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section ~~10.6(c~~9.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 9.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~Company, ~~the Borrower~~Grove Capital, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the ~~Borrower~~ Borrowers may not assign or transfer any of ~~its~~ their rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the ~~Borrower~~ Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except for those rights specified in clauses (i) and (ii) of the proviso to Section 10.1, in each case to the extent ~~that~~ subject to such ~~amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1~~participation. The ~~Borrower agrees~~ Borrowers agree that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The ~~Borrower and each Lender~~ Borrowers also agree that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate thereof or ~~Related Fund thereof~~ a Person under common management with or having the same or an affiliated investment advisor as such Lender or, with the consent of ~~(i)~~ the Borrowers and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such ~~Assignee and~~ Assignee, such Assignor and the Administrative Agent (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrowers is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrowers) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate thereof or ~~Related Fund thereof~~a Person under common management with, or having the same or an affiliated investment advisor as, such Lender) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the ~~Borrower~~ Borrowers and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment ~~that~~ which occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to ~~time~~time and any Notes evidencing such Loans. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans~~ Loan and any ~~Notes~~ Note evidencing such ~~Loans~~ Loan recorded therein for all purposes of this Agreement. Any assignment of any ~~Loan,~~ Loan whether or not evidenced by a ~~Note,~~ Note shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers marked ~~“canceled.”~~ "cancelled". The Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender ~~(with respect to any entry relating to such Lender’s Loans)~~ at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor~~ assigning Lender and an Assignee (and, in ~~any~~ the case ~~where the consent~~ of ~~any other~~ an Assignee that is not then a Lender or an affiliate thereof or a Person ~~is required by Section 10.6(c)~~under common management with such Lender, by ~~each such other Person~~the Borrowers, the Administrative Agent and the Issuing Lender) together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the ~~Borrower~~Lenders and the Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at ~~its~~ their own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or ~~applicable~~ Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or ~~applicable~~ Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the ~~Assignor~~ assigning Lender has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the ~~Assignor~~ assigning Lender in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new ~~Note or~~ Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Grove Investors Capital Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~Company, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests ----------- in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such -------- participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.18, ~~2.18~~ 2.19 and ~~2.19~~ 2.20 with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.19, such -------- Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater -------- ------- amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable -------- law, at any time and from time to time assign to any Lender or any ~~Affiliate~~ affiliate or ~~Related~~ Approved Fund thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement --------- pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, ~~where~~ in the ~~consent~~ case of ~~the Borrower, the Administrative Agent~~ an Assignee that is not then a Lender or ~~the Issuing Lenders is required pursuant to the foregoing provisions~~an affiliate or Approved Fund thereof, by the Borrower and ~~such other Persons~~the Administrative Agent) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such -------- assignment to an Assignee (other than any Lender or any affiliate or ~~Related~~ Approved Fund thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 5,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such ~~Assignor~~ assigning Lender shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required, and, unless requested by the Assignee and/or the Assignor, new Notes shall not be required to be executed and delivered by the Borrower, for any assignment ~~that~~ which occurs at any time when any ~~Event~~ of ~~Default~~ the events described in Section 8 shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent ~~shall, on behalf of the Borrower,~~ shall maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of -------- the Lenders and the ~~Commitment~~ Commitments of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the ~~Loans and any Notes evidencing such Loans~~ Loan recorded therein for all purposes of this Agreement~~. Any~~ . (e) Upon its receipt of an Assignment and Acceptance executed by an Assignor and an Assignee (and, in the case of an Assignee that is not then a Lender or an affiliate or Approved Fund thereof, by the Borrower and the Administrative Agent) together with payment to the Administrative Agent of a registration and processing fee of $3,500, the Administrative Agent shall (i) promptly accept such Assignment and Acceptance and (ii) record the information contained therein in the Register on the effective date determined pursuant thereto; provided however, that no such fee shall be payable in the case of an -------- ------- assignment to another Lender or an Affiliate or Approved Fund of a Lender; and provided further that, in the case of contemporaneous assignments by a Lender to -------- ------- more than one fund managed by the same investment advisor (which funds are not then Lenders hereunder), only a single $3,500 such fee shall be payable for all such contemporaneous assignments. (i) To the extent requested by any ~~Loan~~Lender, ~~whether or not~~ the Loans made by such Lender shall be evidenced by a Note issued by the Borrower, substantially in the form of Exhibit F-1, F-2, F-3, or F-4, as the case may be, payable to the order of such Lender (or, in the case of any Alternative Note, payable to such Lender or its registered assigns). Each Lender is hereby authorized to record, on the schedule annexed to and constituting a part of the relevant Note, information regarding the relevant Loans made by such Lender, and any such recordation shall constitute prima facie evidence of the accuracy of the ----- ----- information so recorded, provided that the failure to make any such recordation -------- or any error in such recordation shall not affect the Borrower's obligations hereunder or under any Note. On or prior to the effective date of an Assignment and Acceptance, the Borrower, at its own expense, shall, to the extent requested by the Assignee, execute and deliver to the Administrative Agent, in exchange for the relevant Notes, new Notes to the order of the Assignee and, if applicable, the Assignor. Such new Notes shall be ~~effective only upon appropriate entries with~~ dated the Closing Date. (ii) Any Non-U.S. Lender that could become completely exempt from withholding of any tax, assessment or other charge or levy imposed by or on behalf of the United States or any taxing authority thereof ("U.S. Taxes") in ---------- respect ~~thereto being made~~ of payment of any Obligations due to such Non-U.S. Lender under this Agreement if the Obligations were in registered form for U.S. federal income tax purposes may request the Borrower (through the Administrative Agent), and the Borrower agrees thereupon, to exchange any promissory note(s) evidencing such Obligations for promissory note(s) substantially in the ~~Register~~form of Exhibit F-3 or F-4, as the case may be (each, an "Alternative Note"). Alternative Notes may ---------------- not be exchanged for promissory notes that are not Alternative Notes. Each Non- U.S. Lender that holds Alternative Note(s) (an "Alternative Noteholder") (or, if ---------------------- such Alternative Noteholder is not the beneficial owner thereof, such beneficial owner) shall deliver to the Borrower prior to or at the time such Non-U.S. Lender becomes an Alternative Noteholder each of the forms and certifications required by Section 2.19(b). An Alternative Note and the Obligation(s) evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Alternative Note and the Obligation(s) evidenced thereby on the Register (and each Alternative Note shall expressly so provide). Any assignment or transfer of all or part of ~~a Loan evidenced by a Note~~ such Obligation(s) and the Alternative Note(s) evidencing the same shall be registered on the Register only upon surrender for registration of assignment or transfer of the ~~Note~~ Alternative Note(s) evidencing such ~~Loan~~Obligation(s), duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed ~~Assignment~~ by) the Alternative Noteholder thereof, and ~~Assumption;~~ thereupon one or more new ~~Notes~~ Alternative Note(s) in the same aggregate principal amount shall be issued to the designated ~~Assignee,~~ Assignee(s). No assignment of an Alternative Note and the ~~old Notes~~ Obligations evidenced thereby shall be ~~returned by~~ effective unless it has been recorded in the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior noticeRegister. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (fg) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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 Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or the Administrative Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Rotech Healthcare Inc)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of ~~the Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of the final maturity of the Loans, release all ~~Lenders pursuant~~ or substantially all of the Collateral or release all or substantially all of the Subsidiary Guarantor from their obligation under the Guarantee and Collateral Agreement in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such ~~Section~~ subsection than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i)~~ the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (~~which, in each case,~~ which shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any ~~affiliate or Related Fund thereof~~Approved Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 2,500,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), and, after giving effect thereto, the Assignor shall have Commitments and Loans aggregating at least $2,500,000, in each case unless otherwise agreed by the Borrower and the Administrative ~~Agent and, after giving effect to such assignment~~Agent. For purposes of the proviso contained in the preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the Borrower ~~shall not be required for~~ or the Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~subsection 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment by the Assignor and/or Assignee to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle~~ above. (~~an “SPC”)~~h) Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~Borrowers, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that ~~the~~ no Borrower may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each Lender (except for any assignment by the ~~Agents~~ Subsidiary Borrower or the Canadian Borrower as permitted by Section 7.3) and ~~each Lender~~Lenders may sell participations in or assign all or any part of their rights and obligations in respect of Loans only as provided in paragraphs (b) and (c) below, respectively, or pursuant to Section 2.23. (b) Any Lender other than any Conduit Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more ~~banks, financial institutions or other entities~~ Eligible Assignees (each, a “Participant”) participating interests in any Loan owing to such Lender, any Revolving Commitment of such Lender or any other interest of such Lender ~~hereunder and under the other Loan Documents~~hereunder. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this ~~Agreement and the other Loan Documents~~Agreement, and the ~~Borrower~~ Borrowers and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this ~~Agreement and the other Loan Documents~~Agreement. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of ~~any Loan Document~~this Agreement, or any consent to any departure by any ~~Loan Party~~ Borrower therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. ~~The~~ Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, neither such ~~Participant~~ Participant, on the one hand, nor the Borrowers nor the Administrative Agent, on the other hand, shall have any rights against or obligations to one another, nor shall any of them be ~~deemed~~ required to ~~have agreed to share~~ deal directly with one another in respect of, the ~~Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if~~ participation of such ~~Participant were a Lender hereunder~~Participant. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations therein, including the requirements under Section 2.18(f) (it being understood that the documentation required under Section 2.18(f) shall be delivered to the participating Lender)) with respect to its participation in the Revolving Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section,~~ Section as if it were a Lender and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred. For the avoidance of doubt, ~~except~~ no Loan Party shall be required to ~~the extent such entitlement to receive a~~ pay any greater amount ~~results from~~ pursuant to Section 2.18 as a result of the ~~adoption of, or~~ transfer of a ~~change in any Requirement of Law that occurs after the~~ participation to a Participant ~~acquired the applicable participation~~than such Loan Party would have been required to pay absent such transfer. Each Lender that sells a participation shall, acting solely for this purpose as ~~a non-fiduciary~~ an agent of the ~~Borrower (and such agency being solely for tax purposes)~~Borrower, maintain a register ~~in the United States~~ on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any ~~Commitments~~ commitments, loans, letters of credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that ~~any~~ such ~~Commitment~~ commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury ~~Regulations~~Regulations or, in the case of any Canadian Borrower, to establish that such Participant dealt at arm’s length with the Canadian Borrower for purposes of the Income Tax Act (Canada). The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender other than any Conduit Lender (an “Assignor”) ~~may~~shall be permitted to assign, in accordance with applicable law, ~~at any time~~ all or a portion of its Loans and ~~from time~~ Revolving Commitments hereunder to ~~time assign to any Lender or any Affiliate or Related Fund thereof or,~~ an Eligible Assignee (an “Assignee”) with the ~~consent~~ consent, not to be unreasonably withheld, of (a) the Parent Borrower, unless (i) the ~~Administrative Agent and so long as no Default~~ Assignee is a Lender or a Lender Affiliate or (ii) an Event of Default under Section 8(a) or 8(b), or 8(h) or 8(i) (with respect to a Borrower), has occurred and is continuing, (b) the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower)Administrative Agent, and (iic) ~~in the case of any assignment of the Revolving Credit Commitments, the~~ each Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement Lender pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the ~~Register; provided~~ relevant Register (it being understood and agreed that no such ~~assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof)~~ Assignee, if it shall not be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender~~’s interests under this Agreement)~~, ~~unless otherwise agreed by the Borrower and~~ shall deliver to the Administrative Agent ~~and~~an administrative questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Parent Borrower and its Affiliates and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, ~~after giving effect~~ including Federal and state securities laws); provided that, notwithstanding anything to the contrary in this Agreement or any of the Loan Documents, no Lender shall be entitled, without the consent of the Parent Borrower, to make an assignment under this Section 10.6(c) if such assignment would increase the cost under this Agreement to any Borrower, including without limitation under Section 2.17 or 2.18, as of the date of such assignment or if, as of the date of such assignment, such assignment would increase the ~~assigning Lender (if it shall retain~~ cost under this Agreement to any ~~Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000,~~ Borrower in the ~~case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities~~foreseeable future. Upon such execution, delivery, acceptance and ~~recording~~recording in the Register pursuant to Section 10.6(d), from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Revolving Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding the foregoing, any ~~provision of this Section,~~ Conduit Lender may assign at any time to its designating Lender hereunder without the consent of any Borrower or the ~~Borrower shall not be required for~~ Administrative Agent any ~~assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes~~ or all of the ~~minimum assignment amounts~~ Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (~~the~~ each, a “Register”) for the recordation of the names and addresses of the Lenders and the Revolving Commitment of, and the principal amount (and stated interest) of the Loans owing to, each Lender from time to time. The entries in ~~the~~ each Register shall ~~be conclusive~~constitute prima facie evidence of the same, in the absence of manifest error, and the ~~Borrower~~Borrowers, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in ~~the~~ each Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~relevant Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the relevant Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount shall~~ may be issued to the designated Assignee, ~~and the old Notes shall be returned~~ if requested by ~~the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to~~ such ~~Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice~~Assignee. (e) Except in the case of an assignment to a Lender, a Lender Affiliate or a Conduit Lender or an assignment of the entire remaining amount of the assigning Lender’s Revolving Commitments or Loans within any Class, the amount of the Revolving Commitments or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than US$5,000,000 unless the Parent Borrower and the Administrative Agent otherwise consent, provided that (1) no such consent of the Parent Borrower shall be required if an Event of Default under Section 8(a) or 8(b), or Section 8(h) or 8(i) has occurred and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its Lender Affiliates or Conduit Lenders, if any. (f) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance in conformity with Section 10.6(c), executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of ~~$3,500 (treating multiple~~US$3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the relevant Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (fg) For avoidance of ~~doubt,~~ doubt the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit ~~assignments creating security interests in Loans and Notes~~the granting of security, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law; provided that the foreclosure on any such pledged Loan shall be subject to the provisions regarding restrictions on assignments contained in this Section 10.6. (h) Each Borrower, upon receipt of written notice from the relevant Lender, agrees to issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (g) ~~Notwithstanding anything to the contrary contained herein~~above. (i) Each Borrower, ~~any~~ each Lender ~~(a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to~~ and the Administrative Agent ~~and the Borrower~~each hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a ~~“Participant”~~"PARTICIPANT") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, ~~provided~~ PROVIDED that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 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 ~~2.17~~2.16, ~~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 ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section~~Section and PROVIDED, ~~and provided, further~~FURTHER, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an ~~“Assignor”~~"ASSIGNOR") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any ~~Affiliate or Related Fund~~ affiliate thereof or, with the consent of ~~(i)~~ 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 E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; ~~provided~~ PROVIDED that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall 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 ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(f) shall have occurred and be ~~continuing. 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 ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated ~~Assignee,~~ Assignee and the old Notes ~~shall~~ 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 multiple~~4,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything~~ The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender ~~(a “Granting Lender”) may grant~~ requiring Notes to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment facilitate transactions of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment type described in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (gf) ~~may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment~~above.

Appears in 1 contract

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 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 ~~2.17~~2.15, ~~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 ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the 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 withheld~~Closing Date), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit 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 ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with the Revolving Credit Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.15, ~~2.18~~ 2.16 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 9.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” " The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (~~treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (~~except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Lehmxx 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 ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative 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 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 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. 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 to the benefits of Sections ~~2.17, 2.18~~ 2.11 and ~~2.19~~ 2.12 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~~2.12, 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~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any ~~Lender or any Affiliate or Related Fund thereof~~ Eligible Assignee or, with the consent of ~~(i)~~ the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (each, an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit EE (an “Assignment and Acceptance”), executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the~~ Administrative Agent or and the ~~Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower~~ Administrative Agent and ~~such other Persons~~the Borrower) 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~~ Affiliate, Related Fund or Control Investment Affiliate thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Administrative Agent, (ii) no such assignment shall be made to any bank, financial institution or other entity listed on Schedule 9.6(c) without the consent of the Borrower and (iii) with respect to any amounts payable under Section 2.11 or Section 2.12 that existed on the ~~Administrative Agent and, after giving effect to such~~ date of the assignment, the ~~assigning Lender (if it~~ Assignee shall ~~retain~~ not be entitled to receive any ~~Revolving Credit Commitment or Loans) shall~~ greater amount pursuant to such Sections than the Assignee’s Assignor would have ~~Commitments~~ been entitled to receive with respect to the interests, rights and ~~Loans aggregating at least $5,000,000, in~~ obligations transferred by such Assignor to the ~~case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any~~ Assignee had such assignment ~~need~~ not ~~be ratable as among the Facilities~~occurred. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments and/or~~ the Term Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.11, ~~2.18~~ 2.12 and ~~10.5~~ 9.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by two or more Related Funds shall be aggregated. 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 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~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Term Loans and any Term Loan Notes evidencing such Term Loans recorded therein for all purposes of this Agreement. Any assignment of any Term Loan, whether or not evidenced by a Term Loan Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Term Loan Note shall expressly so provide). Any assignment or transfer of all or part of a Term Loan evidenced by a Term Loan Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Term Loan Note evidencing such Term Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Term Loan Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Term Loan 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 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(c~~9.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. 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~~ Term Loan Note ~~and/or applicable Term Notes, as the case may be,~~ 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,~~ Loan assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a ~~Revolving Credit Commitment and/or~~ Term ~~Loans, as the case may be~~Loan, upon request, a new ~~Revolving Credit~~ 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,~~ Loan retained by it hereunder. Such new Term Loan Note or Term Loan Notes shall be dated the ~~Restatement~~ Closing 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 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 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: Term Loan Agreement (Radnor Holdings Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the Borrower~~Borrowers, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that neither of the ~~Borrower~~ Borrowers may ~~not~~ assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrowers, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the ~~Borrower~~ Borrowers and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to ~~Section 10.~~Section 110.1. ~~The~~ Each Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. ~~The~~ Each Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said ~~Section~~Section (including the requirements of Section 2.18(d) or Section 2.18(e) as applicable, as though it were a Lender), and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrowers and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained ~~with~~ by any Lehman Entity and (y) the consent of the Borrowers need not be obtainxx xxxh respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrowers, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the ~~Borrower~~ Borrowers and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or thereof, including any Related ~~Fund thereof~~Fund) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by the Borrower and the Administrative Agent~~ ) and, after giving effect ~~to such assignment~~thereto, the assigning Lender (if it shall retain any ~~Revolving Credit Commitment~~ commitments or Loans) shall have ~~Commitments~~ commitments and Loans aggregating at least $~~5,000,000, in the case of Revolving Credit Commitments, and $~~1,000,000, in each case, unless otherwise agreed by the ~~case of~~ Borrowers and the ~~Term Loans~~Administrative Agent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections~~ Section 2.17, 2.18 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the ~~Borrower~~ Borrowers shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the ~~Borrower~~Borrowers, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the ~~Borrower~~Borrowers, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the ~~Borrower~~ Borrowers marked “"canceled.” ". The Register shall be available for inspection by the ~~Borrower~~ Borrowers or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (x) in connection with an assignment by or to a ~~Barclays Entity~~Lehman Entity or (y) in the case of an Assignee which is already a Lexxxx xr is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the ~~Borrower~~Borrowers. On or prior to such effective date, the ~~Borrower~~Borrowers, at ~~its~~ their own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement Closing~~ Effective Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle (an “"SPC”"), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the ~~Borrower~~Borrowers, the option to provide to the ~~Borrower~~ Borrowers all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the ~~Borrower~~ Borrowers pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the ~~Borrower~~ Borrowers and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the ~~Borrower~~ Borrowers and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to ~~the~~ any Borrower may be disclosed only with ~~the~~ such Borrower’s 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the Parent, Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to Section 10. 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Administrative Agent ~~and~~ 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 (which consent shall not be unreasonably withheld~~), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent~~ Borrower or the ~~Issuing Lenders~~ Agents is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit 98 Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” " The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Lehman Entity or (z) in the case of an Assignee which is already x Xxxxer 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 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 100 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 (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~~Holdings, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the ~~Borrower~~Borrower or the Funding Agent, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent 73 68 permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender, any affiliate of any Lender or any ~~Affiliate or Related~~ Approved Fund ~~thereof~~ or, with the consent of ~~(i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing,~~ the Borrower and the Funding Agent (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the ~~Administrative~~ Funding Agent for its acceptance and recording in the Register; provided ~~that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000~~that, ~~in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement), no such assignment to an Assignee (other than any Lender, any affiliate of any Lender or any Approved Fund) shall (i) be in an aggregate principal amount of less than $5,000,000 or (ii) cause the Assignor to have Aggregate Exposure of less than $3,000,000, in each case unless otherwise agreed by the Borrower and the ~~Administrative Agent and, after giving effect to such assignment~~Funding Agent. For purposes of clauses (i) and (ii) of the preceding sentence, the ~~assigning~~ amounts described therein shall be aggregated in respect of each Lender (and its related Approved Funds, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. ~~For purposes~~ On the effective date of any Assignment and Acceptance, the Funding Agent shall give notice of the ~~minimum assignment amounts set forth in this paragraph, multiple assignments~~ terms thereof to ~~or by two or more Related Funds shall be aggregated and for purposes of~~ the ~~minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Administrative Agent that is not serving as Funding Agent. (d) The ~~Administrative~~ Funding Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each ~~Agent~~ other Loan Party, the Agents and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee~~, and~~ . The Funding Agent will promptly send a copy of the ~~old Notes shall be returned by the Administrative Agent~~ Register to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon ~~reasonable prior notice~~request. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the ~~Administrative~~ Funding Agent of a registration and processing fee of $~~3,500 (treating multiple~~3,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the ~~acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative~~ Funding Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan ~~or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Charter Communications Holdings Capital Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent~~REIT, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender 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.and 1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 11.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.14, ~~2.18~~ 2.15 and ~~2.19~~ 2.16 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.15, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower, the Administrative Agent and ~~so long as no Default or Event of Default has occurred and is continuing,~~ the ~~Borrower~~ Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained ~~with respect to~~ by any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or and the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ 1,000,000 (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement)) and, the applicable Assignor (if it shall retain any Commitment or Loans) shall have a Commitment (or in the case the Commitments have been terminated, Loans) of at least $1,000,000, unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.14, ~~2.18~~ 2.15 and ~~10.5~~ 11.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~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 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~~Commitment, upon request, a new ~~Revolving Credit~~ Note ~~and/or Term Notes, as the case may be,~~ to the order of the Assignor in an amount equal to the ~~Revolving Credit~~ Commitment ~~and/or applicable Term Loans, as the case may be,~~ retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle (an “"SPC”"), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~10.6(g~~11.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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 Parent~~Holdings, the Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender~~. (b)~~ . Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans or release the Guarantor from its obligations under the Guarantee Agreement, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.16, 2.17 and 2.18 ~~and 2.19~~ with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided that, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender ~~that sells~~ selling participations (other than the sale of participations to a ~~participation shall, acting solely for this purpose as a non-fiduciary agent~~ Lender Affiliate) shall use its commercially reasonable efforts to provide prompt notice to the Borrower and the Administrative Agent of such participations and of the ~~Borrower (and~~ identity of the purchasers of such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”)participations; provided that no ~~Lender shall have any obligation to disclose all~~ delay or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner failure of such ~~participation for all purposes of this Agreement notwithstanding any~~ notice to be so given shall affect the ~~contrary~~validity of such sale. ~~For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c)~~ Any Lender other than any Conduit Lender (an “"Assignor”") may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an ~~additional~~ Eligible Assignee or to any other bank, financial institution or other entity approved by the Borrower and the Administrative Agent (an “"Assignee”") all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $5,000,000, in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s 's interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be continuing. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d)~~ Section 10.6(c). The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) . Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~1,000, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower~~effective date determined pursuant thereto. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law~~. (g) Notwithstanding anything~~ . The Borrower, upon receipt of written notice from the relevant Lender, agrees to ~~the contrary contained herein,~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph (~~a “Granting Lender”~~f) ~~may grant to a special purpose funding vehicle (an “SPC”)~~above. Each of Holdings, ~~identified as such in writing from time to time by~~ the ~~Granting~~ Borrower, each Lender to and the Administrative Agent ~~and the Borrower~~hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~the option to provide to the Borrower all~~ reorganization, arrangement, insolvency or liquidation proceeding under any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the ~~Agents~~ Administrative Agent and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of ~~all Lenders~~ the Lender from whom such Participant purchased such participation pursuant to ~~Section 10.~~Section 110.1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.15, ~~2.18~~ 2.16 and ~~2.19~~ 2.17 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent and ~~so long as no Default or Event~~ the written consent of ~~Default has occurred and is continuing,~~ the ~~Borrower~~ Issuing Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by the Administrative Agent or any of its Affiliates and (y) the consent of the Borrower need not be obtained with respect to any assignment if an Event of ~~Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment~~ Default shall ~~require the consent of the Borrower),~~ have occurred and ~~(ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not~~ be ~~unreasonably withheld~~continuing), to an additional bank, financial institution or other entity that is not a competitor of the Borrower or its Subsidiaries (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing ~~Lenders~~ Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that ((i) no such assignment to an Assignee (other than any Lender or any affiliate ~~or Related Fund~~ thereof) shall be in an aggregate principal amount of less than $~~5,000,000~~2,500,000 and (ii) after giving effect thereto, the assigning Lender shall have Commitments and Loans aggregating at least $2,500,000, unless otherwise agreed by the Borrower and the Administrative Agent (in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (~~other than in the case of an assignment of all of a Lender’s 's interests under ~~this Agreement~~the Facility), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the FacilitiesAgent. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.15, ~~2.18~~ 2.16 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments by or to ~~or by~~ two or more Related ~~Funds shall~~ Funds, or to two or more funds that will be ~~aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds after giving effect to such assignments, shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, ~~each~~ the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds, or to two or more funds that will be Related Funds after giving effect to such assignments, as a single assignment) (except that no such registration and processing fee shall be payable in ~~connection~~ the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with ~~an assignment by or to~~ a ~~Barclays Entity~~Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the ~~Revolving Credit~~ Note ~~and/or applicable Term Notes, as the case may be,~~ of the assigning Lender) a new ~~Revolving Credit~~ Note ~~and/or applicable Term Notes, as the case may be,~~ to the order of such Assignee in an amount equal to the ~~Revolving Credit~~ Commitment ~~and/or applicable Term Loans, as the case may be,~~ assumed ~~or acquired~~ by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a ~~Revolving Credit Commitment and/or Term Loans, as the case may be~~Commitment, upon request, a new ~~Revolving Credit~~ Note ~~and/or Term Notes, as the case may be,~~ to the order of the Assignor in an amount equal to the ~~Revolving Credit~~ Commitment ~~and/or applicable Term Loans, as the case may be,~~ retained by it hereunder. Such new Note ~~or Notes~~ shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note ~~or Notes~~ replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

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

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender other than any Conduit Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “Participant”) participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 10.7(a) as fully as if ~~such Participant~~ it were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18 (and subject to the obligations of Sections 2.17, ~~2.18~~ 2.19 and ~~2.19~~ 2.20) with respect to its participation in the Commitments and the Loans outstanding from time to time as if ~~such Participant were~~ it was a Lender; provided ~~that~~that a Participant shall not be entitled to the benefits of any such Section unless the Borrower is notified of the participation sold to such Participant and, in the case of Section ~~2.18~~2.17, such Participant shall have complied with the requirements of said ~~Section,~~ Section and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer ~~occurred, except~~ occurred and the aggregate amount of any payments payable under any such Section to the ~~extent~~ transferor Lender and its Participant shall not exceed the amount of such ~~entitlement~~ payments to ~~receive a greater amount results from~~ which the ~~adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable~~ transferor Lender would have been entitled had it not sold such participation. ~~Each Lender that sells a participation shall~~Except as set forth in this Section 10.6(b), ~~acting solely for this purpose as a non-fiduciary agent of~~ the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall not have any obligation ~~to disclose all~~ or ~~any portion of the Participant Register~~ duty to any ~~Person (including the identity of any Participant or any information relating to a~~ Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender other than any Conduit Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Lender Affiliate ~~or Related Fund thereof~~ or, with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event of Default has occurred and is continuing, the Borrower~~ (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement and the other Loan Documents pursuant to an Assignment and ~~Assumption, substantially in the form of Exhibit E~~Acceptance, executed by such ~~Assignee and~~ Assignee, such Assignor ~~(and, where the~~ and any other Person whose consent ~~of the Borrower, the Administrative Agent or the Issuing Lenders~~ is required pursuant to ~~the foregoing provisions~~this paragraph, ~~by the Borrower and such other Persons)~~ and delivered to the Administrative Agent for its acceptance and recording in the Register; provided ~~that~~ that, unless otherwise agreed by the Borrower and the Administrative Agent, no such assignment to an Assignee (other than any Lender or any ~~affiliate or Related Fund thereof~~Lender Affiliate) shall be in an aggregate principal amount of less than $~~5,000,000~~1,000,000), in ~~the~~ each case ~~of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than~~ except in the case of an assignment of all of a Lender’s interests under this Agreement~~), unless otherwise agreed by~~ . For purposes of the ~~Borrower and~~ proviso contained in the ~~Administrative Agent and, after giving effect to such assignment~~preceding sentence, the ~~assigning~~ amount described therein shall be aggregated in respect of each Lender (and its Lender Affiliates, if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loansany. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments~~ a Commitment and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto~~, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14~~). Notwithstanding any provision of this ~~Section~~Section 10.6, the consent of the Borrower shall not be required for any assignment that occurs ~~at any time~~ when ~~any~~ an Event of Default shall have occurred and be ~~continuing~~continuing and for which notice (other than in the case of an Event of Default under Section 8(f)) shall have been given to the Borrower. ~~For purposes~~ Notwithstanding the foregoing, any Conduit Lender may assign at any time to its designating Lender hereunder without the consent of the ~~minimum assignment amounts~~ Borrower or the Administrative Agent any or all of the Loans it may have funded hereunder and pursuant to its designation agreement and without regard to the limitations set forth in the first sentence of this ~~paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated~~Section 10.6(c). (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and the principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each other Loan Party, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing ~~such~~ the Loans recorded therein for all purposes of this Agreement, and the recordation in the Register shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption;~~ Acceptance, and thereupon one or more new Notes ~~in the same aggregate principal amount~~ shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an ~~Assignor and~~ Assignor, an Assignee ~~(and, in any case where the consent of~~ and any other Person whose consent is required by Section 10.6(c), ~~by each such other Person)~~ together with payment to the Administrative Agent of a registration and processing fee of $~~3,500 (treating multiple~~2,500, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) ~~on the effective date determined pursuant thereto~~ record the information contained therein in the Register ~~and give notice of such acceptance and recordation to~~ on the ~~Borrower. On or prior to such~~ effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it date determined pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellationthereto. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section 10.6 concerning assignments ~~of Loans and Notes~~ relate only to absolute assignments and that such provisions do not prohibit assignments creating security ~~interests in Loans and Notes~~interests, ~~including, without limitation,~~ including any pledge or assignment by a Lender ~~of any Loan or Note~~ to any Federal Reserve Bank in accordance with applicable law. (g) ~~Notwithstanding anything to the contrary contained herein~~Any Lender may request that Loans made by it be evidenced by a promissory note, ~~any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent~~ and the Borrower, upon receipt of written notice from the ~~option~~ relevant Lender, agrees to ~~provide~~ issue Notes to any Lender requiring Notes to facilitate transactions of the type described in this Agreement. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the ~~Borrower~~ order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.6) be represented by one or ~~any part of any Loan that~~ more promissory notes in such ~~Granting Lender would otherwise be obligated to make~~ form payable to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment order of the ~~Granting~~ payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns). (h) Each of the Borrower, each Lender to and the ~~same extent~~Administrative Agent hereby confirms that it will not institute against a Conduit Lender or join any other Person in instituting against a Conduit Lender any bankruptcy, ~~and as if~~reorganization, ~~such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for~~ arrangement, insolvency or liquidation proceeding under any ~~indemnity~~ state bankruptcy or similar ~~payment obligation under this Agreement (all liability~~ law, for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of ~~all outstanding~~ the latest maturing commercial paper note issued by such Conduit Lender; provided, however, that each Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion expense arising out of its ~~interests in any Loans~~ inability to ~~the Granting Lender, or with the prior written consent~~ institute such a proceeding against such Conduit Lender during such period of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendmentforbearance.

Appears in 1 contract

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 ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, ~~in which case~~ then such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing ~~Lenders~~ Lender (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent~~ Borrower or the ~~Issuing Lenders~~ Agents is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Cinemark Usa Inc /Tx)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders, the ~~Agents~~Administrative Agent, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of ~~the Agents and~~ each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Revolving Credit Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the ~~Agents~~ Administrative Agent shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would ~~require~~ reduce the ~~consent~~ principal of, or interest on, the Loans or any fees payable hereunder, or postpone the date of ~~all Lenders pursuant~~ the final maturity of the Loans, in each case to ~~Section 10. 1~~the extent subject to such participation. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section 10.7(a)as fully as if such Participant were a Lender hereunder. The Borrower and each Lender also agree that each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section 2.18, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “Assignor”) may, in accordance with applicable law, at any time and from time to time assign to any Lender or any Affiliate or Related Fund thereof or, with the consent of (i) the Administrative Agent and so long as no Default or Event of Default has occurred and is continuing, the Borrower (which, in each case, shall not be unreasonably withheld or delayed) (provided that no such consent need be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “Assignee”) all or any part of its rights and obligations under this Agreement pursuant to an Assignment and Assumption, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the Borrower, the Administrative Agent or the Issuing Lenders is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any affiliate or Related Fund thereof) shall be in an aggregate principal amount of less than $5,000,000, in the case of any assignment of Revolving Credit Commitments, and $1,000,000, in the case of any assignment of Term Loans (other than in the case of an assignment of all of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term Loans. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and Assumption, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and Assumption, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to Sections 2.17, 2.18 and 10.5 in respect of the period prior to such effective date and Section 10.14). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments to or by two or more Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section 10.2 a copy of each Assignment and Assumption delivered to it and a register (the “Register”) for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the Register. Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and Assumption; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “canceled.” The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and Assumption executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section 10.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable in connection with an assignment by or to a Barclays Entity), and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder) the Administrative Agent shall (i) promptly accept such Assignment and Assumption and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and Assumption and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the Restatement Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, including, without limitation, any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section 10.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of the Required Lenders, the Borrower and any SPC with Loans outstanding at the time of such proposed amendment.maximum

Appears in 1 contract

Samples: 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~~ The Parent, the Borrower, the Lenders, the Agents, all future holders of the Loans and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Agents and each Lender. (b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at any time sell to one or more banks, financial institutions or other entities (each, a “"Participant”") participating interests in any Loan owing to such Lender, any Commitment of such Lender or any other interest of such Lender hereunder and under the other Loan Documents. In the event of any such sale by a Lender of a participating interest to a Participant, such Lender’s 's obligations under this Agreement to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely responsible for the performance thereof, such Lender shall remain the holder of any such Loan for all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agents shall continue to deal solely and directly with such Lender in connection with such Lender’s 's rights and obligations under this Agreement and the other Loan Documents. In no event shall any Participant under any such participation have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except to the extent that such amendment, waiver or consent would require the consent of all Lenders pursuant to ~~Section 10.~~Section 111.1. The Borrower agrees that if amounts outstanding under this Agreement and the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by applicable law, be deemed to have the right of setoff in respect of its participating interest in amounts owing under this Agreement to the same extent as if the amount of its participating interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing such participating interest, such Participant shall be deemed to have agreed to share with the Lenders the proceeds thereof as provided in Section ~~10.7(a)as~~ 11.7(a) as fully as if such Participant were a Lender hereunder. The Borrower ~~and each Lender~~ also ~~agree~~ agrees that each Participant shall be entitled to the benefits of Sections ~~2.17~~2.19, ~~2.18~~ 2.20 and ~~2.19~~ 2.21 with respect to its participation in the Commitments and the Loans outstanding from time to time as if such Participant were a Lender; provided that, in the case of Section ~~2.18~~2.20, such Participant shall have complied with the requirements of said Section, and provided, further, that no Participant shall be entitled to receive any greater amount pursuant to any such Section than the transferor Lender would have been entitled to receive in respect of the amount of the participation transferred by such transferor Lender to such Participant had no such transfer occurred, except to the extent such entitlement to receive a greater amount results from the adoption of, or a change in any Requirement of Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower (and such agency being solely for tax purposes), maintain a register in the United States on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments or other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that any such Commitment or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (c) Any Lender (an “"Assignor”") may, in accordance with applicable ~~law~~law and upon written notice to the Administrative Agent, at any time and from time to time assign to any Lender or any ~~Affiliate or~~ affiliate, Related Fund or Control Investment Affiliate thereof or, in the case of an assignment to any other Person with the consent of ~~(i)~~ the Borrower and the Administrative Agent ~~and so long as no Default or Event~~ and, in the case of ~~Default has occurred and is continuing~~any assignment of Revolving Credit Commitments, the ~~Borrower~~ written consent of the Issuing Lender and the Swing Line Lender (which, in each case, shall not be unreasonably withheld or delayed) (provided (x) that no such consent need be obtained by any Xxxxxx Entity or any Agent for a period of 180 days following the Closing Date and (y) the consent of the Borrower need not be obtained with respect to any assignment of Term Loans, unless such assignment is to a Person that is a motion picture exhibitor or an Affiliate or related entity of a motion picture exhibitor, in which case such assignment shall require the consent of the Borrower), and (ii) in the case of any assignment of the Revolving Credit Commitments, the Issuing Lenders (which consent shall not be unreasonably withheld), to an additional bank, financial institution or other entity (an “"Assignee”") all or any part of its rights and obligations under this Agreement pursuant to an Assignment and ~~Assumption~~Acceptance, substantially in the form of Exhibit E, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower~~Borrower or, the Administrative Agent or the Issuing ~~Lenders~~ Lender or the Swing Line Lender is required pursuant to the foregoing provisions, by the Borrower and such other Persons) and delivered to the Administrative Agent for its acceptance and recording in the Register; provided that no such assignment to an Assignee (other than any Lender or any ~~affiliate~~ Affiliate or Related Fund thereof) shall be in an aggregate principal amount of of, and no Assignor shall hold following such assignment, less than $~~5,000,000, in~~ 1,000,000 with respect to the ~~case of any assignment of~~ Term Loans and $1,000,000 with respect to the Revolving Credit ~~Commitments, and $1,000,000, in the case of any assignment of Term Loans~~ Facility (other than in the case of an assignment of all of a Lender’s 's interests under this Agreement), unless otherwise agreed by the Borrower and the Administrative Agent and, after giving effect to such assignment, the assigning Lender (if it shall retain any Revolving Credit Commitment or Loans) shall have Commitments and Loans aggregating at least $5,000,000, in the case of Revolving Credit Commitments, and $1,000,000, in the case of the Term LoansAgent. Any such assignment need not be ratable as among the Facilities. Upon such execution, delivery, acceptance and recording, from and after the effective date determined pursuant to such Assignment and ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with Commitments and/or Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s 's rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.19, ~~2.18~~ 2.20 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts set forth in this paragraph, multiple assignments ~~to or~~ by two or more ~~Related Funds shall be aggregated and for purposes of the minimum hold amounts, the Commitments and Loans of~~ Related Funds shall be aggregated. (d) The Administrative Agent shall, on behalf of the Borrower, maintain at its address referred to in Section ~~10.2~~ 11.2 a copy of each Assignment and ~~Assumption~~ Acceptance delivered to it and a register (the “"Register”") for the recordation of the names and addresses of the Lenders and the Commitment of, and principal amount of the Loans owing to, each Lender from time to time. The entries in the Register shall be conclusive, in the absence of manifest error, and the Borrower, each Agent and the Lenders shall treat each Person whose name is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded therein for all purposes of this Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall be effective only upon appropriate entries with respect thereto being made in the ~~Register~~Register (and each Note shall expressly so provide). Any assignment or transfer of all or part of a Loan evidenced by a Note shall be registered on the Register only upon surrender for registration of assignment or transfer of the Note evidencing such Loan, accompanied by a duly executed Assignment and ~~Assumption~~Acceptance; thereupon one or more new Notes in the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes shall be returned by the Administrative Agent to the Borrower marked “"canceled.” ". The Register shall be available for inspection by the Borrower or any Lender (with respect to any entry relating to such Lender’s 's Loans) at any reasonable time and from time to time upon reasonable prior notice. (e) Upon its receipt of an Assignment and ~~Assumption~~ Acceptance executed by an Assignor and an Assignee (and, in any case where the consent of any other Person is required by Section ~~10.6(c~~11.6(c), by each such other Person) together with payment to the Administrative Agent of a registration and processing fee of $3,500 (treating multiple, simultaneous assignments by or to two or more Related Funds as a single assignment) (except that no such registration and processing fee shall be payable (y) in connection with an assignment by or to a ~~Barclays Entity~~Xxxxxx Entity or (z) in the case of an Assignee which is already a Lender or is an affiliate or Related Fund of a Lender or a Person under common management with a Lender), ~~and the acceptance of the Assignee’s completed administrative questionnaire (unless the Assignee shall already be a Lender hereunder)~~ the Administrative Agent shall (i) promptly accept such Assignment and ~~Assumption~~ Acceptance and (ii) on the effective date determined pursuant thereto record the information contained therein in the Register and give notice of such acceptance and recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense, upon request, shall execute and deliver to the Administrative Agent (in exchange for the Revolving Credit Note and/or applicable Term Notes, as the case may be, of the assigning Lender) a new Revolving Credit Note and/or applicable Term Notes, as the case may be, to the order of such Assignee in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, assumed or acquired by it pursuant to such Assignment and ~~Assumption~~ Acceptance and, if the Assignor has retained a Revolving Credit Commitment and/or Term Loans, as the case may be, upon request, a new Revolving Credit Note and/or Term Notes, as the case may be, to the order of the Assignor in an amount equal to the Revolving Credit Commitment and/or applicable Term Loans, as the case may be, retained by it hereunder. Such new Note or Notes shall be dated the ~~Restatement~~ Closing Date and shall otherwise be in the form of the Note or Notes replaced thereby. In the event that the Administrative Agent has received a Revolving Credit Note and/or a Term Note, as the case may be, from the assigning Lender, the Administrative Agent shall promptly return to the Borrower such Note and/or Notes for cancellation. (f) For avoidance of doubt, the parties to this Agreement acknowledge that the provisions of this Section concerning assignments of Loans and Notes relate only to absolute assignments and that such provisions do not prohibit assignments creating security interests in Loans and Notes, ~~including, without limitation,~~ including any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank in accordance with applicable law. (g) Notwithstanding anything to the contrary contained herein, any Lender (a “"Granting Lender”") may grant to a special purpose funding vehicle (an “"SPC”"), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other indebtedness of any SPC, it will not institute against, or join any other ~~Person~~ person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any state thereof. In addition, notwithstanding anything to the contrary in this Section ~~10.6(g~~11.6(g), any SPC may (A) with notice to, but without the prior written consent of, the Borrower and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender, or with the prior written consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld) to any financial institutions providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans, and (B) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC; provided that non-public information with respect to the Borrower may be disclosed only with the Borrower’s 's consent which will not be unreasonably withheld. This paragraph (g) may not be amended without the written consent of ~~the Required Lenders, the Borrower and~~ any SPC with Loans outstanding at the time of such proposed amendment.

Appears in 1 contract

Samples: Credit Agreement (Dobson Communications Corp)

Successors and Assigns; Participations and Assignments. (a) This Agreement shall be binding upon and inure to the benefit of the ~~Parent, the~~ Borrower, the Lenders~~, the Agents~~, 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. 1~~the 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 ~~Lender~~Lender or Assignee under Section 10.6(c); provided that, in the case of Section ~~2.18~~2.16, such Participant shall have complied with the requirements of said Section, ; and provided, further, that (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.103~~5f103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary~~. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register~~. (c) Any Lender (an “Assignor”) may, in accordance with applicable ~~law~~law and upon written notice to the 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 ~~Assumption~~Acceptance, substantially in the form of Exhibit ED, executed by such Assignee and such Assignor (and, where the consent of the ~~Borrower, the Administrative Agent or the Issuing Lenders~~ Borrower is required pursuant to the foregoing provisions, by the ~~Borrower and such other Persons~~Borrower) 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 ~~Assumption~~Acceptance, (x) the Assignee thereunder shall be a party hereto and, to the extent provided in such Assignment and ~~Assumption~~Acceptance, have the rights and obligations of a Lender hereunder with ~~Commitments and/or~~ Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent provided in such Assignment and ~~Assumption~~Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and ~~Assumption~~ Acceptance covering all of an Assignor’s rights and obligations under this Agreement, such Assignor shall cease to be a party hereto, except as to ~~Sections 2.17~~Section 2.15, ~~2.18~~ 2.16 and 10.5 in respect of the period prior to such effective ~~date and Section 10.14~~date). Notwithstanding any provision of this Section, the consent of the Borrower shall not be required for any assignment that occurs at any time when any Event of Default shall have occurred and be continuing. For purposes of the minimum assignment amounts 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 ~~Lender~~Xxxxxx’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 ~~request~~receipt 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 be~~Loan, upon request, a new ~~Revolving Credit~~ Note ~~and/or Term Notes, as the case may be,~~ to the order of the Assignor in an amount equal to the ~~Revolving Credit Commitment and/or applicable Term Loans, as the case may be,~~ 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 therefor~~Borrower, 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.)

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